2010 (10) TMI 134 - HC - Customs

Appeal to High Court Maintainability - condonation of delay - Tribunal orders dismissing the appeal order declining to condone the delay in filing the appeal - dismissal of the appeal is only a refusal to entertain the appeal under Section 129A of the Act - Appeals referred to in Section 129B are valid appeals filed under Section 129A which are either appeals filed within time or belated appeals entertained by the Tribunal after condoning the delay in terms of order passed under sub-section (5) of Section 129A - no order can be passed on such appeal by the Tribunal and the order passed by the Tribunal dismissing the belated appeal on account of rejection of delay condonation petition cannot be treated an order passed under Section 129B - appeal is not maintainble under Section 130 against order passed by the Tribunal declining to entertain a belated appeal filed by reason of rejection of delay condonation petition filed under Section 129A(5) of the Act

Summary

Issues:
1. Maintainability of appeal before the High Court under Section 130 of the Customs Act, 1962.

Analysis:
The judgment deals with the issue of the maintainability of an appeal before the High Court under Section 130 of the Customs Act, 1962. The appeal in question was filed against the order of the Customs, Excise and Service Tax Appellate Tribunal dismissing an application for condonation of delay filed along with the appeal. The Tribunal can admit an appeal only if the delay in filing the appeal is condoned by it after being satisfied that there was a sufficient cause for not presenting it within the specified period. If the delay condonation petition is dismissed, the appeal cannot be admitted, and it is as if no valid appeal is filed before the Tribunal.

The provision for filing an appeal before the Tribunal is contained in Section 129A of the Act, which sets out the time limit for filing an appeal and the conditions under which the Tribunal may admit an appeal after the expiry of the relevant period. The judgment clarifies that an appeal to the High Court under Section 130 of the Act is against every order passed by the Tribunal in an appeal filed before it. However, an order rejecting an appeal after the dismissal of the delay condonation petition is not considered an order in appeal against which an appeal can lie to the High Court under Section 130 of the Act.

The Court emphasized that the appeal cannot be maintained before the High Court under Section 130 against an order passed by the Tribunal declining to entertain a belated appeal due to the rejection of the delay condonation petition filed under Section 129A(5) of the Customs Act. The judgment directs the Registry not to number any appeal filed under Section 130 of the Customs Act against orders of the Tribunal dismissing belated appeals consequent upon the dismissal of delay condonation petitions. Ultimately, the Court rejected the appeal as not maintainable under Section 130 of the Act and advised the appellant to seek remedy against the impugned order of the Tribunal by filing a Writ Petition or through other appropriate means.