Calcutta High Court
Metro Exporters Ltd. vs Cegat on 18 July, 1990
Equivalent citations: 1991(51)ELT316(CAL)
JUDGMENT Susanta Chatterji, J.
1. A short point has arisen in the present case to consider the scope of Section 128 and Section 130 of the Customs Act as to the power of the Customs, Excise & Gold (Control) Appellate Tribunal to condone the delay in filing the Reference Application. The Metro Exporters Limited, a Company and one of its Directors have come to this writ Court challenging the order dated 30th of March, 1990 being No. 183 (A)/CAL/1990-193(C) passed by Customs, Excise & Gold (Control) Appellate Tribunal, copy of which is Annexure "G" to the writ petition and for an appropriate writ to prohibit the Tribunal to proceed with Reference Application No. 12 of 1988 by assuming wrongly jurisdiction to entertain the same. It is stated that the respondent No. 1 CEGAT being a Statutory Tribunal created under the Customs Act is circumscribed by the provisions of the Act and/or the Rules framed thereunder and it is to discharge its functions in accordance with the provisions of the Act and/or Rules. It is further stated that proviso to Section 130(1) of the Customs Act clearly specifies the period within which an application for Reference under Sub-section (1) of Section 130 is to be presented before the Tribunal. It is alleged that the Tribunal is not authorised by the Customs Act to allow any applicant to present any Reference Application beyond the extended period of 30 (thirty) days after the expiry of 60(sixty) days from the receipt of the order in respect of which any question of law is sought to be referred to the High Court. It is stated in details that on or about 13th of October, 1988, the respondent No. 2 the Collector of Customs, Calcutta filed an application under Section 130(1) of the Customs Act for referring to the Hon'ble High Court at Calcutta 4(four) purported questions of law. The said Reference Application was numbered as 12 of 1980 as the said Reference Application was filed ex facie beyond the statutory period of limitation of 60(sixty) days from the date of the receipt of the order, a Miscellaneous Application No. 215 of 1988 was filed on 31st October, 1988. The said Miscellaneous Application No. 215 of 1988 was not properly verified and the hearing was adjourned from time to time. However, an application for condonation of delay was received by the petitioner by a forwarding letter dated 2nd of February, 1989 copy of which is Annexure "D" to the writ petition. The said application came up for hearing on 7th April, 1989 and it was found further that the same was not properly verified. On or about 9th of May, 1989, the Collector of Customs, Calcutta filed an application which was signed by him on 5th of May, 1989. Ultimately, by the impugned order the Tribunal is alleged to have condoned the delay in filing the Reference Application. Being aggrieved the petitioners have come to this Court on the ground that the Tribunal has acted beyond the jurisdiction in condoning the delay and by entertaining the Reference Application.
2. Mr. Subrata Roychowdhury, the Senior Advocate for the writ petitioners has mainly argued :-
(i) The first application for condonation of delay dated 26th of October, 1988 filed on 31st October, 1988 and numbered as Miscellaneous Application No. 215 of 1988 and signed by Sri P.C. Jain, Junior Departmental Representative is non est in law and has to be totally ignored.
(ii) As far as the second application filed by the Collector of Customs was concerned and numbered as Misc. Application No. 43 of 1989, it was not even verified and the same is not to be treated an application in the eye of law.
(iii) Regard being had to the materials on record, the only application which could have been considered as an application for condonation of delay was dated 5th of May, 1989 and actually filed on 9th of May, 1989. It is emphasized by Mr. Roychowdhury that the application dated 5th of May. 1989 was filed 201 days beyond the period prescribed for filing the Reference Application.
(iv) It is contended that regard being had to the proviso to Section 130 of the Customs Act, the application for condonation of delay dated 5th of May, 1989 filed on 9th of May, 1989 was not even within the extended period of 30(thir-ty) days and therefore, Reference Application was liable to be rejected.
(v) It is argued that the proviso of Section 5 of the Limitation Act cannot be imported in view of the proviso to Section 130 of the Customs Act as the said Act prescribes a special period of limitation.
(vi) The respondent No. 1 Tribunal has no jurisdiction to condone the delay beyond the period of 30(thirty) days as provided in Section 130(1) of the said Act, and, the Second application is not in accordance with law and the same was filed beyond the extended period of 30 (thirty) days.
(vii) The impugned order is contrary to and inconsistent with the provisions of the aforesaid Act and there was no sufficient case as made out by the respondent No. 2 to condone the delay in filing the Reference Application.
In support of the contention of the petitioners, the attention of the Court has been drawn to and (The Commissioner of Sales tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur).
3. The writ petition is strongly opposed by the contesting respondents. Mr. N,C. Roychowdhury, the Ld. Counsel appearing for the respondent Customs Authorities has since submitted that Sub-section (1) of Section 130 of the Customs Act clearly postulates that a Reference Application has to be presented to the Appellate Tribunal within the period of 60(sixty) days from the date of receipt of the order in respect of which questions of law are sought to be referred to the Hon'ble High Court. Proviso to the Sub-section (1) enables the Appellate Tribunal to allow such application to be presented within a further period not exceeding 30(thirty) days provided if it is satisfied that the applicant was prevented by Sufficient cause from presenting the said application within the aforesaid period of 60(sixty) days. The said proviso makes it abundantly clear that any Miscellaneous Application for allowing the Reference Application to be presented to the Appellate Tribunal may be made and the delay may be condoned. In the instant case, the Reference Application has been filed within the extended period of 30(thirty) days. In fact, there is only delay of 2(two) days for filing the Reference Application. The application for condonation of delay has been filed later and there is neither any illegality and/or irregularity in condoning the delay in filing the Reference Application.
4. Having heard Mr. Subrata Roychowdhury for the writ petitioner and Mr. N.C. Roychowdhury for the respondent Customs Authorities, this Court finds that Section 130(1) of the Customs Act reads as follows :-
"The Collector of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 129B (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in such form as may be specified by rules made in this behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court : Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be present within a further period not exceeding thrity days".
5. In the present case, a Reference Application has admittedly been filed within the extended period of 30(thirty) days. There is delay of 2(two) days in filing the said application. No application for condonation of delay was filed along with Reference Application. The application for condonation of delay by way of Miscellaneous Application has been filed beyond the extended period of 30(thirty) days. The question arises as to whether there is any scope to file an application for condonation of delay after the expiry of the extended period. Law is very clear inasmuch as the Tribunal has to consider whether there is any sufficient cause to prevent the applicant in filing the Revisional Application within time. There are two limits. The first limit is 60 (sixty) days and the second limit and/or the outer limit is further 30(thrity) days. Within the extended period the Reference Application has to be filed and the delay may be condonded upon satisfaction making out a sufficient cause. There is no outer limit for filing of an application for condonation of delay. The distinction is subtle. There is nothing in the Customs Act that in case there is delay in filing the Reference Application the same has to be filed along with an application for condonation of delay. Although Mr. Roychowdhury has emphasized that in the eye of law there is no existence of a Reference Application unless the delay is condoned. An application for condonation of delay cannot be equated with the concept of the provisions of Section 5 of Indian Limitation Act. According to him, there is no outer limit as envisaged under Section 5 of the Limitation Act whereas the outer limit to condone the delay under the provisions of the Customs Act is circumscribed by the proviso to Section 130 of the Customs Act. There is a basic difference as to appreciate the scope of Under Section 5 of the Limitation Act and the scope of Section 130 of the Customs Act. True, the scope under Section 5 of the Limitation Act is larger. The scope of Section 130 of the Customs Act is limited. No Reference can be filed beyond 60 (sixty) days from the date of the receipt of the order. There is extension of a further period of 30 (thirty) days provided there is a sufficient cause. These are the limitations. Any delay may be condoned strictly in terms of the said provision. In the present case, the Reference Application has in fact been filed within the extended period of 30 (thirty) days. There is no limit of filing an application for condonation of delay. The Tribunal is not supposed to consider the delay in filing the application for condonation of delay. The Tribunal is supposed to consider the delay in filing the Reference Application. With all anxieties, this Court has applied its mind to go through the reasoned order of the respondent No. 1 Tribunal. The Tribunal has tried to consider the problem in the proper perspective to find out that there is in fact a delay of 2 (two) days and a sufficient case has been made out to condone the same. This Court has considered the case of the reported decision as referred. In there is a consideration of the outer limit of the period of limitation and in it was discussed that under U.P. Sales-tax Act and U.P. Sales-tax Rules a revision application was filed beyond time prescribed by Section 10 it was found that if the legislature in a special statute prescribed a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period of sufficient cause being shown may be extended in the maximum, only upto a specified time limit and no further, the Tribunal concerned has no jursidiction to treat within limitation, and application filed before it beyond such maximum time limit specified in the Statute, by excluding the time spent in prosecuting in good faith and with due diligence in prior proceedings, on the analogy of Section 13(2) of the Limitation. It has further been found that where legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give effect to the same without scanning its wisdom or policy and without engrafting, adding or implying anything which is not convenient to or consistent with such expressed intent of the law-giver, more so if the Statute is a taxing statute.
6. The aforesaid principle is not in doubt. The Tribunal being a creature of the statute has to exercise its power under the provisions of the special statute. The concept of a larger freedom as provided under Section 5 of the Limitation Act is not available to the Tribunal but the special statute does not prohibit the Tribunal to entertain the application for condonation of delay and the consideration of the sufficient cause as to delay in filing the Revisional Application beyond the extended period while the Revisional Application has in fact been filed within the extended period of limitation. It is frequently found that an appeal, or a Revision, or a Reference being filed long ago come up for hearing, and at the stage of hearing, if it is found that there is any delay, leave is granted to pray for condonation of such delay. While considering the application for condonation of delay, the Court or the Authority has not to consider the delay in filing the application for condonation of delay. It is required to consider the delay in filing the Memorandum of Appeal or the Revision or the Reference. Accordingly, in the present case, the Tribunal has rightly considered that there is delay of 2 (two) days in filing the Reference Application and it is well within the 2 (two) days of the extended period.
7. For the foregoing reasons, this Court does not find any merit in the writ petition to interfere with the impugned order. The writ petition is thus rejected. There will be no order as to costs.