Kerala High Court
M/S.Mohd. Fariz And Co vs Commissioner Of Customs on 19 October, 2010
Bench: C.N.Ramachandran Nair, K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Cus.Appeal.No. 12 of 2010()
1. M/S.MOHD. FARIZ AND CO.,
... Petitioner
Vs
1. COMMISSIONER OF CUSTOMS,
... Respondent
For Petitioner :SRI.C.K.KARUNAKARAN
For Respondent :SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :19/10/2010
O R D E R
C .N. RAMACHANDRAN NAIR, &
K. SURENDRA MOHAN, JJ.
--------------------------------------------
Customs Appeal No. 12 of 2010
--------------------------------------------
Dated this the 19th day of October, 2010
JUDGMENT
Ramachandran Nair, J.
This is an appeal filed against the order of the Customs, Excise and Service Tax Appellate Tribunal dismissing an application for condonation of delay filed along with the appeal. Registry has numbered the appeal probably believing that appeal will lie against an order dismissing a delay condonation petition and consequently the appeal. We have heard counsel appearing for the appellant and standing counsel Sri. John Varghese appearing for the respondent on the question of maintainability of appeal before this Court under Section 130 of the Customs Act, 1962, hereinafter called the "Act".
2. The provision for filing appeal before the Tribunal is contained in Section 129A of the Act, which in sub-section (3) states that appeal shall be filed within a period of three months from the date of receipt of the order appealed against. However, sub-section (5) of Section 129A states as follows:
CUA 12/2010 2
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after expiry of the relevant period referred to in sub-section (3) or sub-
section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
What is clear from the above provision is that Tribunal can admit an appeal only if delay in filing the appeal is condoned by it after being satisfied that the appellant was prevented from filing the appeal for good and sufficient cause. In other words, unless the Tribunal is satisfied about the sufficiency of the ground for condonation of delay, and they pass orders condoning the delay, appeal cannot be admitted at all. If delay condonation petition is dismissed, then appeal does not happen to be admitted and it is as if no valid appeal is filed before the Tribunal. Necessarily if delay condonation petition is dismissed, as is done in this case, Tribunal has to pass orders dismissing the appeal as a consequence of the order declining to condone the delay in filing the appeal. The effect of dismissal of the appeal is only a refusal to entertain the appeal under Section 129A of the Act. So much so, in the eye of law, once delay condonation petition is dismissed, belated appeal cannot be treated as valid appeal filed under Section 129A of CUA 12/2010 3 the act. We do not know the practice followed by the Tribunal in numbering the appeals. In our view, appeal can be numbered only if delay condonation petition is allowed, and the Tribunal facilitates entertainability of the appeal filed beyond the time limit.
3. Appeal to the High court is provided under Section 130 of the ct which provides as follows:
130. Appeal to High Court.-- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (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 purpose of assessment), if the High Court is satisfied that the case involves a substantial question of law.
.....................................
What is clear from the above provision is that appeal is against every order passed by the Tribunal in an appeal filed before it. Orders of the Appellate Tribunal are covered by Section 129B of the Act, which provides procedure for hearing and disposal of appeals before the Tribunal. Appeals referred to in Section 129B are valid appeals filed under Section 129A which are either appeals filed within time or CUA 12/2010 4 belated appeals entertained by the Tribunal after condoning the delay in terms of order passed under sub-section (5) of Section 129A. So much so, when the appeal filed is not entertained by the Tribunal, no order can be passed on such appeal by the Tribunal and the order passed by the Tribunal dismissing the belated appeal on account of rejection of delay condonation petition cannot be treated an order passed under Section 129B in the appeal filed by the appellant. So much so, an order rejecting an appeal after dismissal of delay condonation petition is not an order in appeal against which appeal will like to the High Court under Section 130 of the Act. So much so, appeal is not maintainble before this Court under Section 130 against order passed by the Tribunal declining to entertain a belated appeal filed by reason of rejection of delay condonation petition filed under Section 129A(5) of the Act.
We direct the Registry not to number any appeal filed under Section 130 of the Customs Act, against orders of the Tribunal dismissing belated appeal consequent upon dismissal of delay condonation petition filed under Section 129A(5) of the Customs Act. CUA 12/2010 5 We therefore reject the appeal as not maintainable under Section 130 of the Act . It is for the appellant to seek remedy if any against the impugned order of the Tribunal dismissing delay condonation petition by filing Writ Petition or otherwise.
(C.N.RAMACHANDRAN NAIR) Judge.
(K. SURENDRA MOHAN) Judge.
kk CUA 12/2010 6