Calcutta High Court
Commissioner Of Customs (Airport & ... vs M/S. South Asian Petrochem Ltd on 1 April, 2014
Author: Harish Tandon
Bench: Harish Tandon
ORDER SHEET
W.P. No. 386 of 2013
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
COMMISSIONER OF CUSTOMS (AIRPORT & ADMINISTRATION),KOLKATA
VERSUS
M/S. SOUTH ASIAN PETROCHEM LTD.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 1ST APRIL, 2014.
For the Customs Authority :
Mr. R. Bharadwaj,Sr. Advocate Mr. T.M.Siddiqui,Advocate The Court :- This writ petition is at the instance of the department challenging an order dated 29th October, 2012 passed by the Customs, Excise & Service Tax Appellate Tribunal, East Regional Bench, Kolkata, whereby and whereunder an application for condonation of delay in preferring the appeal was rejected.2
At the very outset, the point arose whether the order rejecting an application for condonation of delay amounts to the rejection of the main proceeding as well. The aforesaid point has been settled by the Apex court in case of Shyam Sundar Sarma vs. Pannalal Jaiswal & Ors. reported in AIR 2005 Supreme Court 226 in these words :
"10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew (1987 (2) KLT 848). Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an 3 application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal."
In view of the ratio laid down in the above report, there is no hesitation to arrive at the finding that the rejection of an application for condonation of delay amounts to the rejection of the main proceedings.
The order impugned in this revisional application is, therefore, appealable under Section 130 of the Customs Act, 1962. This Court finds that the petitioners have efficacious alternative remedy by way of statutory appeal and, therefore, this Court does not find any grounds warranting the invocation of powers of judicial review.
The writ petition is, thus, dismissed.
There shall, however, be no order as to costs.
(HARISH TANDON, J.) S.Chandra