(1.) Customs Appeal Nos. 6, 7, 8 and 9/2008 arise out of the order passed by the Customs, Excise & Service Tax Appllate Tribunal, dated 12.3.2008. Customs Appeal Nos. 13, 15 and 16 of 2009 arise out of another set of cases disposed of by a common order of the Tribunal, dated 24.7.2008.
(2.) The point involved is the same. Though some of the appeals are presented beyond the prescribed period of time, the appeals were presented along with a petition for condonation of delay under Section 5 of the Limitation Act. It was contended that in the absence of any express provision making the Limitation Act applicable to the appeal so presented, the appeal presented beyond the time cannot be entertained and that Section 50 has no application and placed reliance on the decision of the Apex court in Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., 2009 236 ELT 417. We have perused the judgment cited. The Apex Court. After considering the provisions contained under Section 35H of the Central Excise Act providing for a reference to the High Court, which provides a period of limitation but in the absence of any provision for filing any reference application beyond the said time and in the absence of any express provision making Limitation Act applicable, held that Section 5 of the Limitation Act stood excluded..
(3.) Though in the course of its discussion reference was also made to the appeal provision, actually, the question as to whether Section 5 did apply to an appeal preferred to the High Court under Section 130 of the Customs Act did not arise for consideration. Further, as rightly pointed out by the learned Counsel appearing on behalf of the appellant, Section 130(9) inter alia provides "that except as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 relating to appeals to this High Court shall, so far as may be, apply in the case of appeals under the Section". Thus, the appeal provision contained in the Code of Civil Procedure are expressly made applicable. As per Order XLI Rule 3-A when an appeal is presented after the period of limitation of specified, therefore, it shall be accompanied by an application supported by affidavits setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period. However, we do not think in the factual situation, it is necessary or proper to consider these contentions for the reason that the delay has already been condoned by an order of court and in the absence of any review sought for in the matter we are not called upon to reconsider the order passed by a co-ordinate Bench of this Court.