HARI SHANKAR AND SONS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The appellants herein had imported steel measuring tapes seeking clearance under OGL which was not accepted as the goods were consumer goods requiring a valid import licence to cover their import. The goods were, therefore, confiscated under Section 111(d) of the Customs Act 1962 with an option to redeem the same on payment of a fine, and a penalty of Rs. 10,000/ - was imposed upon them under Section 112 of the Act vide Order -in -Original dated 2.3.95. The appellants filed an appeal before the commissioner (Appeals); the department also filed appeal seeking enhancement of fine and penalty, and vide Order -in -Original dated 20.11.96 the appeal of the importers was rejected and the department's appeal was allowed by way of remand. The importers filed an appeal before the Tribunal which by its order No. C -IV/1339/WZB/03 dated 25.12.03 remanded the case for re -determining the issue as to whether the goods are consumer goods in addition to the issue of fine and penalty. The Jt. Commissioner vide his order dated 16.07.04 confirmed that the goods were consumer goods and he also enhanced the fine and penalty. Against this order, the importers filed an appeal before the Tribunal which by its order No. A -109 WZB 2005/C -III dated 17.1.2005 dismissed the appeal on the ground that it was not maintainable since the appeal against the Jt. Commissioner's order lay before the Commissioner (Appeals). An appeal was preferred before the Commissioner (A) on 24.1.05 and was dismissed by the lower Appellate Authority vide his order dated 31.3.2005 on the ground that it was barred by limitation and that it was filed beyond the period of 90 days ie. beyond the period which the Commissioner (A) was empowered to condone delay if he was satisfied about the reason for the delay. Hence this appeal.

(2.) We have heard both sides. The appellants relied upon the General Provisions of Limitation under Section 14 and 29 of the Limitation Act and the decision of the Apex Court in the case of P. Sarathy v. State Bank of India , considering the provisions under the Tamil Nadu Shops and Establishments Act relating to limitation. However, there is a direct decision of the Hon'ble Delhi High Court in the case of Delta Impex v. CC,(ACU) New Delhi [2004(173) E.L.T. 449 (Del.) in the context of Section 128 of the Customs Act which is the section providing for appeal to Commissioner (Appeals). The Hon'ble High Court has held that Section 128 specifically provides the period of limitation of 60 days for preferring an appeal to the Commissioner (A) and also provides that only a further period of 30 days delay can be condoned, which means that the legislature has given a mandate that delay can be condoned only for the specified period prescribed in the proviso to Section 128, and not further. The High Court has held that the provisions of Section 5 of the Limitation Act are necessarily excluded and cannot be called in aid to supplement the provisions of the Act. The above decision is directly on the issue before us and therefore, following the ratio thereof, we uphold the impugned order and reject the appeal as time barred. Accordingly, stay is also dismissed.