METRO EXPORTERS LTD Vs. CEGAT

JUDGEMENT

(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 :-

(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.