2015 (3) TMI 1180 - HC - Customs

Seeking direction for condonation of delay of 18 days - beyond statutory period conferred power under him - Section 128 of the Customs Act, 1962 - petitioner was under a dilemma as to whether an appeal is to be filed against the Bill of Entry or a refund application is enough for the differential amount and that they were under the bona fide impression. Held that - it is not in dispute that the bill of entry is dated 1.5.2014 and the application to file an appeal before the Commissioner (Appeals) should be within sixty days, i.e. on or before 2.7.2014. However, it has been filed on 13.8.2014. It is to be noted that the proviso to Section 128 (1) enables the Commissioner (Appeals) to permit the filing of the appeal beyond the sixty days provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. In fact, while exercising such discretionary power, the authority has condoned the delay in respect of other four items, wherein, the appeals were filed though after expiry of 60 days, however, since they were within the condonable period of 90 days. The present appeal was beyond the statutory period of 90 days and the authority has rightly rejected the same, since he cannot be expected to exercise his discretionary power beyond the permissible period that was prescribed by the statute. The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act. Therefore, the Customs Act, 1962 is a complete code and the provisions of Section 128 (1) clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condensation of delay or to entertain the appeal itself. Therefore, having regard to the categoric pronouncement of Hon ble Supreme Court in various cases, holding that when the scheme of the special law which herein in this case is the Customs Act and the nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself, which alone should govern the several matters provided by it, it is clear that the provisions of the Limitation Act are necessarily excluded, the benefits conferred therein cannot be called in aid to supplement the provisions of the Act, this Court is of the view that the delay which is beyond the statutory period of limitation, cannot be condoned. the order passed by the commissioner (Appeals) are unassailable in law. - Decided against the petitioner

Summary

Issues Involved:

1. Delay in filing the appeal beyond the statutory period.
2. Authority of the Commissioner (Appeals) to condone the delay.
3. Jurisdiction of the High Court to condone the delay beyond the statutory period.
4. Applicability of the Limitation Act to the Customs Act.
5. Precedents and their applicability to the present case.

Detailed Analysis:

1. Delay in filing the appeal beyond the statutory period:
The petitioner filed an appeal against the assessment orders made by the Deputy Commissioner, which was rejected by the Commissioner of Appeals II due to a delay of 18 days beyond the statutory period prescribed under Section 128 of the Customs Act, 1962. The petitioner sought condonation of this delay, citing reasons such as confusion over whether to file an appeal or a refund application, and the time taken to consult legal experts.

2. Authority of the Commissioner (Appeals) to condone the delay:
Section 128 of the Customs Act stipulates that an appeal must be filed within sixty days from the communication of the decision or order. The Commissioner (Appeals) has the discretion to condone a delay of up to thirty additional days if sufficient cause is shown. In this case, the appeal was filed beyond the total permissible period of ninety days, leading to its rejection by the Commissioner (Appeals).

3. Jurisdiction of the High Court to condone the delay beyond the statutory period:
The petitioner argued that the High Court, exercising its inherent powers, could condone the delay to prevent injustice. The petitioner relied on precedents where courts have entertained appeals beyond the statutory period to avoid extraordinary hardship. However, the respondent contended that the Customs Act is a self-contained code, and in the absence of specific provisions, the High Court has no power to condone the delay.

4. Applicability of the Limitation Act to the Customs Act:
The court referred to the Supreme Court's decisions in "Singh Enterprises vs. CCE" and "Commissioner of Customs and Central Excise vs. Hongo India Private Limited," which clarified that the Limitation Act does not apply to the Customs Act beyond the specific provisions for condonation of delay. The Customs Act is a complete code, and the Commissioner (Appeals) cannot condone delays beyond the additional thirty days provided by the statute.

5. Precedents and their applicability to the present case:
The petitioner cited the Gujarat High Court's decision in "Amitara Industries Ltd. vs. Union of India" and the Supreme Court's decision in "K.C. Sharma and others vs. Union of India and others" to support their case. However, the court found these precedents inapplicable. The facts of "Amitara Industries Ltd." were different, involving extraordinary circumstances, and "K.C. Sharma" dealt with a finality regarding the validity of impugned notifications, which was not analogous to the present case. The court also distinguished the relief granted in W.P.Nos.4770, 2496, and 2497 of 2013, noting that those cases did not address the issue of delay.

Conclusion:
The court concluded that the Customs Act is a complete code, and the provisions of the Limitation Act are excluded beyond the thirty-day extension period. The delay beyond the statutory period of ninety days cannot be condoned. The orders passed by the Commissioner (Appeals) were upheld, and the writ petition was dismissed with no costs.