Karnataka High Court
M/S Balaji Bio Tech Ltd vs Commissioner Of Customs And Central ... on 9 June, 2009
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9TH DAY OF JUNE 2009 PRESENT " THE HONBLE MR. P.D. DINAKARAN, CHIEF ~ THE HON'BLE MR. JUSTIC'iEmV§G'«.SZl.Bl<llll:l7ll5I'_K' WRIT PETITION NIEMBER BETWEEN: V 0 it l\/E/s. Balaji Bio-Tech Ltd, I Vagarru Village, Thupilipalem, Represented by its Di_rectoII.... . ; 0 PETITIONER (By Sri. M;R;'C.-Jéavi ié;dvd'cate. forpetr.) AND _ _ . T , . 1. Commissioner of Customs.-and Central Excise,» Kannavarithota, 004.0" ..... yr" -SupVerintend_ent of Central Excise, *-Gugdur vRaI;Vge,A'.i'GJ_~1dur. .. RESPONDENTS (Bysri. _N;Rl}Bhaskar ---- Adv. for Respts.) Thisv.V_.lWrit Petition is filed under Article 226 of the 'C0ns't1tution of India praying that this Court be pleased to call for "the._ 'vreeords in Appeal No.C/COD/192/07, C/st/123/06 in C./273/2006 of the Appellate Tribunal culminating in the final "'--oVrde_f No.400/2007 and stay order No/306/2007 and Misc.Order "~«No"f184/2007 all dated 03.04.2007 and to quash the same, "~.,r;c')ndor1e the delay of 58 days in filing of the appeal and direct the » Appellate Tribunal to consider the Appeal filed by the petitioner Company on merits, and etc., This Writ Petition coming up Preliminary Heanrilgon this day, the Court delivered the following: --. JUDGMENT
(Delivered by PD. D1N;>..iI.ARAN_~'c}J)" C A This Writ Petition is directed.' ag'ainstlll'~th'e_.l' orcle'i*.ficIated 03.04.2007 made in lNo:l: . /V200i?', C/ St/ 123/2005 in C/27§3/ Excise and Service Tax Appellate Trihurnil.,_ Bejnch at Bangalore in exercise of its powei'.under-"Section'* g:thellCustoms Act, 1962 dismissing the of delay of 58 days in preferringli'Lheiiappléal', stay application and also the appeal filed against thegorder passed by the Commissioner of Customs and Central-E>tcilse.,~'lwhich reads thus:
_ ln__ tennsv..of«vNotiJ'ication No.196/94-Cus, dated A with the conditions of B 15 Bond, it legal undertaking and letter of 9* penniseiencli read with Section 28 and 28 AB of the V Act, 1962, I demand an amount of A .9 05,524/-- being the proportionate duty on the raw " ~..r_n*aterial/ consumables used in the production of seed cleared into DTA during the period 94-95 to 98-99 along with interest at the applicable rate; (For the purpose of convenience of calculation I hereby order to reckon the interest from the 301" September of the financial year in respect of clearances pertaining to the financial year):
(B) In terms of Section 111 (0) of the Custon*ts'*;ii'ct,r".,A' 1962, I order confiscation of imported Rs.9, 90, 60,479/- imported by M/s. B.Btg---i..'7wzihout' payment of duty, for contravening"thel.«prouisions"of Notification No.196/94 -- Cus din.-V,8:12;94.2*r.Ho.toeoe§§;'---(V.' allow them an option to redeem theasaime by ii a fine of Rs.1,00,000/- within days' 'receipt: of the order.
(C) In terms of Rul_e_.v?0_9 (fentral Excise Rules 194-fl, «'E._o'rderijpconfiécatioriof V indigenous Capital Goods oaiited 'Rs-;.5,'0g,.§8,..68B/"Lg procured by M/s. BBL 0/ dated 23.2. 95 for contra vening: of the notification No.1 0/ 95-
CE. However," an option to redeem the samepby fine of Rs.1,00,000/- within 30 V' _ receipt ofthe order.
_ a penalty of 1235,00, 000/~ on M/s. BBL 'E£_nd¢?' provisions of Section 117 of the / Customs Act; "1962 for contravention of the conditions of it 'Notifications (1 96/ 94 Cus and 1 0/ 95 CE) and for i"'._ii"contravening the terms and condition of B16 Bond, General Bond, Legal undertaking and letter of permission; and (E) I impose a penalty of Rs.10,000/-- on Shri M. Srinivasulu, General Manager (Commercial) of M/ s. BBL under the provisions of Section 112 of Customs 1962. "
2. By the impugned proceedings d¢'if€"difh€:iii"-- Appellate Authority, in exercise of the_po_Wer:' 'under"'* Section 1298, interfering with': the appeal Section 129A of the Customs Act, dismisseid"'«tihe .Appeall..ii:
3.1. Section 129--A('3;}iof'the that:
"Every appeal under siectioni filed within three months the igiate ioriitiihichf the order sought to be .__€54.,i.:eoinmunicated to the Commi.ssion'er..V_of.Customs, or as the case may be, the other party prej"ejiririg._pt?ie appeal."
32; I_-Eouiever,' as Sub--section (5) of Section 129A of the C'usto'rns *Act," the Appellate Tribunal may admit an appeal or a memorandum of crosS--objections after the ._ eXpiry.._of i_re.leix/ant period referred to in sub--section (3) or sub- i.ii'~"~_sec.(4), is satisfied that there was sufficient cause for not it it within that period.
E 4.1. It is the case of the petitioner that though in the appeal it "hefore the appellate Tribunal, the petitioner herein had prayed for condonation of delay in filing the appeal before the Appellate Authority, the Appellate Authority, without exercising the power conferred under Sub--section (5) of Section 129A of th€w:.C.tiiSt0InS Act refused to condone the delay and dismissed the following order: , ".3. On a carefitl consideration, affidavit filed by Shri T. Mallilcarjiinal"I?edd_y,"i' that there is no denial of lf'}"vi€,®:]:','l'Clf that._tlh.-3..V-order divas served on the appellants,l""'It.i,_:is'snot denied Shri T. Mallilcarjuna Redd; the person who receivedthe inot bring to his knowledge; 'I.n, of aJ.lfi'ida.iiitilalso,_g:it is clear that the order was on.:t=he'»appel-lants and they have not tchfile 'the 'appeal. There is no explanation of 58 days. The negligence is patent'e.._olrti,reco.rdheinee, there is no ground to deny the delay the light " of the judgments cited by the C'OD__application is dismissed. As a result, , 'vapplication and appeal are also dismissed on vgfeoartdi'Qflimitation. "
ili§~.2.v-.Aggrieved by the said order, the petitioner has come up H is dwiitizn the plresent Writ Petition.
5. Before this Court also, the petitioner has explained in uhdetail the reasons for condoning the delay of 58 days in filing the above appeal, which reads thus:
supporting stafi] relevant papers connected to the case could not be traced and submitted to the Advocate for preparation of appeal. "
6.1. From the reading of the above, it is clear that reason was put--forth before the Appellate that-.thej Appellate Authority refused to condone'theicleilayf2 ., I, _ "
6.2. In our considered opinion, we that the Appellate Authority has failed to exierciiseuitsflrightsviconferred under Subsection (5) of Section of. Act and requires interference of the order paihssetliray .the."a.ppell:ate authority. 6.3.V"Ch)"f' 'coiurseilfin "'Co'1nmissi'oner of Customs 85 Central Excise vs;.M\'/re.'Herigerineiieji?) Ltd. 85 Am"., (Civil Appeal No. 1939 /2009 Qpeisingi eut._ef'..s.L.P. (c) No.14467/2007), the Apex I ourt l3ere1inde.r.:.. < ".28. . . . While considering the very same ~_ whether the high Court has power to Aco_ndon'e.: delay in presentation of the reference underA'Section 35H(1) of the Act, the two--Judge Bench 2 it 'tiaIcin_oi note of the said provision and the other related A provisions following Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others, (2008) 3 SCC 70 concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application." H.
19. As pointed out earlier, the language Section 35, 353, 35EE, 35G and SSH m&;késVV'_',:-the . position clear that an appeal and reference,to'*r»the.i.I--Iigiali Court should be made within 185 idayfis'-.gonlyrfr'o_m, the date of communication of the decision or order; _Inother_1 words, the language used.in'otherprovi.sions'makes the he position clear that the legislature intended appellate authority to entertain ap-peals_:bye'condoningAthe delay only upto 30 days .exp.iry' of which is the preliminary limitation..pen',od..e an appeal. In the absen'(:e_:ifof dny the delay by showing "su,fficie--rit gfter_' the prescribed period, there is completle "exclusion ofsection 5 of the Limitation Actig' The therefore, justified in holding that there, was 'no power to condone the delay after expiry of therprescrilied period of 180 days. Even forfilingan appeal to the Commissioner, and , ,._to tVhe.pAppe_llate Tribunal as well as revision to the he it_c-CeritralvvilGovernment, the legislature has provided 60 e' days respectively, on the other hand, for filingean appeal and reference to the High Court larger 'A period of 180 days has been provided with to enable " -.the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
20. Though, an argument was raised basedi.._'on,_g Section 29 of the Limitation Act, even assuming Section 29(2) would be attracted what we" ¥'t'c,: "
determine is whether the provisions of tl'iisLsecftion are expressly excluded in the case of..,reference if Court. It was contended before thatiV_thé~. 1,DOVl'"'d'S'~,'V"
"expressly excluded" would-mean thQat,_the_re be express reference made in special orhlocall lav} to the specific provisions "the of which the operation is to be excluded; we have to see the sche;n'e__ of this case is Central riature. theiremedy provided ther*eiint'areii5such~: ihatvthe iegisvzaiere intended it to be a complete which alone should govern the several mattersprovidedi it. If, on an examination of the relevant prohvisionsi it is clear that the provisions of ._':the E,liirn.i_tation' Act..«are necessarily excluded, then the A ' 2 .,bene}'its-cotiferred cannot be called in aid to supplement it of the Act. In our considered view, that ' __even as case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act it is .«by an express reference, it would nonetheless be open * the Court to examine whether and tow hat extent, the nature of those provisions or the nature of the subject- matter and scheme of the special law exclude their operation. In other words, the applicability of the ..
:5 M' :Zm"/ E0 provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by provisions of the Central Excise Act relating to reference application to the High Court. The ~ the Central Excise Act, 1 944 support the conctitsiori ' the time limit prescribed under Section 351(1) pa a reference to High Court is absolute:and*unextertda,ble_AJii' by Court under Section 5 of the Itis * settled law that it is the duttfof the 'Cou:1_tdi.:reispect.the legislative intent and by liberal' interpretation, limitation cannot be extend_edllby--:irtuoicing thelprovisions of Section 5 Ofthe Act? i' it it 6.4. We.i1ave:icareijLi,ll$tLgone the said decision of the ApexVCoi1rt.i;ijiThe:fsaid'*decision"of":the Apex Court is related to three appeals, reference application made in the High Court urtder Slection 3l5(H) (1) of the Central Excise Act, to 'which,',"3¥.concededly,"«Section 5 of the Limitation Act is not i'appl,ic'ab_iei__l'Consequently, taking note of the above fact, the Apex Court in thel*.V£ia,seVlreferred to above by its order dated 2?.03.2009 ' 'held that in the absence of power under Section 35H (1) of the iC'entral_E>tcise Act, the High Court has no power to condone the gaeiiayil "But in the instant case, Sub--section (5) of Section 129A "rernpoWers the Appellate Authority to condone the delay for just and valid reason, which, in our considered opinion, has not been err': .
x , er 1 M"
M EE properly exercised by the Appellate Authority as already observed. Hence, we are of the opinion that the decision relied on by the appellate authority is not applicable to the facts of the---.present case. M ii
7. Accordingly, we pass the following- i} The Writ Petition is allowed No.C/COD/192/2007, C/st/iéisfpiitziooe is set aside. i it
ii) The matter is remitted. Authority (first respondent) with and dispose of V V Web Host: ""i3:t'e.é/No.