SUPREME COURT OF INDIA
Thakker Shipping (P.) Ltd.
Versus
Commissioner of Customs (General)
CIVIL APPEAL NO. 7696 OF 2012
OCTOBER 30, 2012
JUDGMENT
R.M Lodha, J – Leave granted.
2. The High Court answered in the affirmative the following question:
“Whether the CESTAT has discretionary power under Section 129A(5) of the Customs Act, 1962 to condone the delay caused in filing the appeal under Section 129D(3) [sic, 129D(4)] of the said Act, when there was sufficient cause available to appellant for not filing it within the prescribed period before the Appellate Authority”.
3. The facts leading to the present appeal are these. A container was intercepted by M & P Wing of Commissioner of Customs (Preventive), Mumbai on 11.01.2001. It was found to contain assorted electrical and electronic goods of foreign origin. The said goods were imported by M/s Qureshi International and the cargo was cleared from Nhava Sheva. The clearance of the goods was handled by M/s Thakker Shipping P. 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 and Service Tax Appellate Tribunal (for short, ‘Tribunal’) and CHA licence was restored. The inquiry under Regulation 23, however, proceeded against the CHA on diverse charges. The Commissioner of Customs (General) Mumbai by his order in original dated 21.07.2004 dropped the proceedings under Regulation 23 by rejecting the findings of the inquiry officer.
5. The Committee of Chief Commissioners of Customs (for short, ‘the Committee’) constituted under sub section (1B) of Section 129A of the Act called for and examined the records of the proceedings leading to order in original dated 21.07.2004 passed by the Commissioner of Customs (General) Mumbai (for short, ‘the Commissioner’) for satisfying itself as to the legality and propriety of the said order. The Committee on consideration of the entire matter directed the Commissioner to apply to the Tribunal for determination of the following points, namely; (1) whether taking into consideration the facts and circumstances noticed in the order, the order of the Commissioner was legally correct and proper; and (2) whether by an order under Section 129B of the Act, the Tribunal should set aside the order of the Commissioner dropping the proceedings against the CHA.
6. The Commissioner, accordingly, made an application under Section 129D(4) of the Act before the Tribunal. As the said application could not be made within the prescribed period and was delayed by 10 days, an application for condonation of delay was filed with a prayer for condonation. The Tribunal on 28.11.2005, however, rejected the application for condonation of delay and consequently dismissed the appeal by the following brief order:
“This appeal has been filed by the applicant Commissioner in pursuance of Order of Review passed by a Committee of Chief Commissioners. In the application for condonation of delay filed by the applicant Commissioner, a prayer has been made for condoning delay of 10 days. In the case of CCEx. Mumbai v. Azo Dye Chem-2000 (120) ELT 201 (Tri-LB), Larger Bench of the Tribunal has held that the Tribunal has no power to condone the delay caused in filing such appeals by the Department beyond the prescribed period of three months. Even though the said decision was in a central Excise case, the ratio of this decision is equally applicable to Customs cases since the legal provisions under both the enactments are similar.
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 CCE v. Azo Dye Chem 2000 (120) ELT 201 (Tri-New Delhi). He also placed heavy reliance upon a three-Judge Bench decision of this Court in CCE v. Hongo India (P.) Ltd [2009] 5 SCC 791. Learned counsel for the appellant also placed reliance upon decisions of this Court in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan [1996] 2 SCC 449, Fairgrowth Investments Ltd. v. Custodian [2004] 11 SCC 472 and UCO Bank v. Rajinder Lal Capoor [2008] 5 SCC 257.
9. On the other hand, Mr. R.P. Bhatt, learned senior counsel for the respondent, supported the view of the High Court in passing the impugned order. He submitted that the answer to the question under consideration was dependent on construction of Sections 129D and 129A of the Act.
10. Section 129D (omitting the parts not relevant) reads:
“S.129D. -Power of Committee of Chief Commissioners of Customs or Commissioner of Customs to pass certain orders. – (1) The Committee of Chief Commissioners of Customs may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner … to apply to the Appellate Tribunal … for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order;
