2010 (8) TMI 1123 - HC - Customs

CESTAT has discretion to condone appeal delays under Customs Act, 1962.

The Commissioner of Customs (Gen) Versus Tahkker Shipping Pvt. Ltd.

The Commissioner of Customs (Gen) Versus Tahkker Shipping Pvt. Ltd. - TMI Issues Involved:1. Whether the CESTAT has discretionary power under Section 129A(5) of the Customs Act, 1962 to condone the delay in filing the appeal under Section 129D(3) of the Customs Act, 1962.Issue-wise Detailed Analysis:1. Discretionary Power of CESTAT to Condon Delay:The primary issue revolves around whether the CESTAT has the discretionary power to condone the delay in filing appeals under Section 129D(3) of the Customs Act, 1962, as per the provisions of Section 129A(5).Factual Background:- The Respondent, a Custom House Agent (CHA), had its license suspended due to alleged involvement in smuggling activities and improper declaration of imported goods.- The CHA's suspension was later revoked by CESTAT, but an inquiry continued, leading to the Commissioner of Customs dropping proceedings against the CHA.- The Committee of Chief Commissioners reviewed this decision and directed an appeal to be filed, which was delayed by 10 days.- The CESTAT dismissed the appeal due to the delay, citing lack of power to condone it based on a precedent set by the larger Bench in CCEX Mumbai v. AZO Dye Chemical.Submissions:- For the Respondent:- Argued that the appeal is not maintainable since the impugned order follows the larger Bench's decision, which has not been challenged by the Revenue.- Cited the Supreme Court's stance in B.J. Akkara, Col.(Retd.) v. Government of India, emphasizing the need for the Government to explain why the first order was accepted without appeal.- For the Appellant (Revenue):- Contended that Section 129D(4) inherently includes the power to condone delay by referencing the provisions relating to appeals, including Section 129A(5).- Argued for a purposive interpretation of the statute to avoid discriminatory treatment and ensure justice.- Highlighted that the Legislature's intent was not to treat Section 129D(4) differently from other appeal provisions regarding condonation of delay.Judicial Pronouncements and Interpretation:- The Tribunal's decision in CCEX Mumbai v. AZO Dye Chemical was based on interpreting 'such application' in Section 129D(4) to mean applications filed within three months.- The High Court examined the statutory provisions and principles of interpretation, emphasizing that the words 'provisions of this Act regarding appeals' in Section 129D(4) should include the power to condone delay under Section 129A(5).- The Court noted that legal fictions, like 'as if such application were an appeal,' should be carried to their logical end to fulfill legislative intent.Ruling:- The High Court concluded that applications under Section 129D(4) should be treated similarly to appeals under Section 129A, including the power to condone delay.- The Court emphasized the need for a harmonious construction of related provisions to avoid irrational and discriminatory outcomes.- It was held that denying the power to condone delay in applications under Section 129D(4) while allowing it for cross objections arising from the same provision would be contradictory and violate Article 14 of the Constitution.Conclusion:- The High Court answered the question in the affirmative, in favor of the Revenue, and remanded the matter back to the Tribunal to consider the application for condonation of delay on its merits.- The Tribunal was directed to expedite the process and decide within three months from the receipt of the order.This comprehensive analysis maintains the legal terminology and significant phrases from the original text while ensuring thorough coverage of all relevant issues.