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1990 Supreme(Cal) 283
High Court Of Calcutta
Susanta Chatterji
METRO EXPORTERS LTD. - Appellant
Versus
CEGAT - Respondent
Matter . Of .
Decided On : 07/18/1990
LATIN GHOSH, N.C.ROY CHAUDHARY, PRANOB KUMAR DUTTA, SUBRATA ROYCHOWDHURY
The Tribunal has the power to condone the delay in filing a Reference Application even if it is filed beyond the extended period of 30 days, provided that the delay in filing the Reference Application itself was within the extended period.
Headnote:
CUSTOMS ACT - SECTION 128, 130 - CONDONE DELAY - REFERENCE APPLICATION - SCOPE OF THE TRIBUNAL'S POWER TO CONDONE DELAY IN FILING REFERENCE APPLICATION - INTERPRETATION OF SECTION 130(1) PROVISO.
Fact of the Case:
The petitioners, a company and its director, challenged the order of the Customs, Excise, and Gold (Control) Appellate Tribunal (CEGAT) condoning the delay in filing a Reference Application under Section 130(1) of the Customs Act. The application was filed 201 days beyond the prescribed period and beyond the extended period of 30 days allowed by the proviso to Section 130(1). The petitioners argued that the Tribunal lacked jurisdiction to condone the delay beyond the extended period.
Finding of the Court:
The court held that the Tribunal had the power to condone the delay in filing the Reference Application even if it was filed beyond the extended period of 30 days. The court interpreted the proviso to Section 130(1) as allowing the Tribunal to consider applications for condonation of delay filed after the extended period, provided that the delay in filing the Reference Application itself was within the extended period.
Issues: 1. Whether the Tribunal had the power to condone the delay in filing the Reference Application beyond the extended period of 30 days? 2. Whether the proviso to Section 130(1) of the Customs Act allowed for applications for condonation of delay to be filed after the extended period?
Ratio Decidendi: 1. The court held that the Tribunal had the power to condone the delay in filing the Reference Application beyond the extended period of 30 days because: - The proviso to Section 130(1) of the Customs Act did not explicitly prohibit the Tribunal from considering applications for condonation of delay filed after the extended period. - The Tribunal was required to consider the delay in filing the Reference Application, not the delay in filing the application for condonation of delay. - It was common practice for courts and authorities to grant leave to pray for condonation of delay at the hearing stage, even if the application for condonation of delay was filed long after the prescribed period. 2. The court held that the proviso to Section 130(1) of the Customs Act allowed for applications for condonation of delay to be filed after the extended period because: - The proviso stated that the Tribunal "may allow" the Reference Application to be presented within a further period not exceeding 30 days, which implied that the Tribunal had the discretion to consider applications filed after the extended period. - The Tribunal was required to consider whether the applicant was prevented by "sufficient cause" from presenting the application within the prescribed period, which could include factors that arose after the extended period had expired.
Final Decision: The court dismissed the writ petition and upheld the Tribunal's order condoning the delay in filing the Reference Application.
( 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 and 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 and 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
