TaxTMI 
TaxTMI 
TaxTMI 
2012 (11) TMI 39
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.... Ltd., the appellant, referred to as the Custom House Agent ('CHA' for short). On physical verification, the value of seized cargo was estimated at Rs. 77,10,000/- as local market value as against the declared value of Rs. 10,03,690/-. The importer could not be interrogated. On search of premises of CHA, the books relating to import export clearance were not found for verification. In the statement of Vijay Thakker, proprietor of the CHA, recorded under Section 108 of the Customs Act, 1962 (for short, 'the Act'), he accepted that he attended the import clearance work and introduced the importer to the overseas suppliers and bankers for financial assistance; the bill of entry for the clearance of subject goods had been filed without proper description and correct value and he failed to inform the Customs Officers about the subject goods, despite having attended the examination of 5% goods prior to the clearance. Accordingly, the inquiry officer recorded his findings. 4. Initially, the appellant's CHA licence was placed under suspension pending inquiry under Regulation 23 of Custom House Agent Licencing Regulations, 2004 but the suspension order was set aside by the Customs, Excise....
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....r. 2. Accordingly, following the ratio of Azo Dye Chem (Supra), we have no option but to reject the application for condonation of delay. We order accordingly and consequently, the appeal also stands dismissed". 7. This appeal raises the question, whether it is competent for the Tribunal to invoke Section 129A(5) of the Act where an application under Section 129D(4) has not been made by the Commissioner within the prescribed time and condone the delay in making such application if it is satisfied that there was sufficient cause for not presenting it within that period. 8. Learned counsel for the appellant submitted that Section 129D(4) of the Act was self contained and if the application contemplated therein was not made within the prescribed period, the Tribunal has no power or competence to condone the delay after expiry of the prescribed period. In support of his arguments he relied upon a larger Bench decision of the Customs, Excise and Gold (Control) Appellate Tribunal ('CEGAT') in Commissioner of Central Excise v. Azo Dye Chem[(2000) 120 ELT 201 (Tri-Delhi)]. He also placed heavy reliance upon a three-Judge Bench decision of this Court in Commissioner of Customs and....
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..................................." We may clarify that sub-sections (3) and (4) of Section 129D have been amended from time to time. What has been reproduced above are the provisions existing at the relevant time. 11. Section 129A (omitting the parts not relevant) reads: "S.129. - Appellate Tribunal. - (1) .......................................................................... (2) .................................................................... (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Customs, or as the case may be, the other party preferring the appeal. (4)On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the....
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....n leaves no manner of doubt that the provisions of Section 129A (1) to (7) have been mutatis mutandis made applicable, with due alteration wherever necessary, to the applications under Section 129D(4). 13. From the plain language of Section 129D(4), it is clear that Section 129A has been incorporated in Section 129D. For the sake of brevity, instead of repeating what has been provided in Section 129A as regards the appeals to the Tribunal, it has been provided that the applications made by the Commissioner under Section 129D(4) shall be heard as if they were appeals made against the decision or order of the adjudicating authority and the provisions relating to the appeals to the Tribunal shall be applicable in so far as they may be applicable. Consequentially, Section 129A(5) has become integral part of Section 129D(4) of the Act. In other words, if the Tribunal is satisfied that there was sufficient cause for not presenting the application under Section 129D(4) within prescribed period, it may condone the delay in making such application and hear the same. 14. Parliament intended entire Section 129A, as far as applicable, to be supplemental to Section 129D(4) and t....
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....y, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal". This Court observed that except providing a period of 180 days for filing reference application to the High Court, there was no other clause for condoning the delay if reference was made beyond the said prescribed period. Sections 5 and 29(2) of the Limitation Act were noted. This Court then held that the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order and in the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there was complete exclusion of Section 5 of the Limitation Act. In conclusion this Court held that the time limit prescribed under Section 35-H(1) to make a reference to the High Court was absolute and unextendable by the Court under Section 5 of the Limitation Act. In the present case, as noted above, the provisions relating to the appeals to the Tribunal have been mad....