2012 (11) TMI 39 - SC - Customs

Whether CESTAT has discretionary power u/s 129A (5) to condone the delay caused in filing the appeal under Section 129D(3) - appeal by revenue in compliance of direction by the Committee of Chief Commissioners of Customs or Commissioner of Customs to pass certain orders - Held that - From the plain language of Section 129D(4), it is clear that Section 129A has been incorporated in Section 129D. 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) & 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. In the present case the provisions relating to the appeals to the Tribunal have been made applicable to an application made under Section 129D(4) and it has been further provided that such application shall be heard as if it was an appeal made against the decision or order of the adjudicating authority. Any delay in presentation of appeal under Section 129A is condonable by the Tribunal by virtue of sub-section (5) thereof. It is competent for the Tribunal to invoke Section 129A(5) where an application under Section 129D(4) has not been made 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.

Issues Involved:
1. Discretionary power of CESTAT under Section 129A(5) of the Customs Act, 1962.
2. Interpretation of Sections 129D and 129A of the Customs Act, 1962.
3. Application of the Limitation Act to the Customs Act.
4. Competence of the Tribunal to condone delay under Section 129D(4).

Issue-wise Detailed Analysis:

1. Discretionary Power of CESTAT under Section 129A(5) of the Customs Act, 1962:
The High Court affirmed that the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has the discretionary power under Section 129A(5) to condone delays in filing appeals under Section 129D(4) if there is sufficient cause. The Tribunal initially rejected the application for condonation of a 10-day delay in filing the appeal, citing a precedent that it lacked the power to condone such delays beyond the prescribed period.

2. Interpretation of Sections 129D and 129A of the Customs Act, 1962:
Section 129D(4) states that applications made by the Commissioner to the Tribunal should be heard as if they were appeals against the adjudicating authority's decision, making the provisions of Section 129A applicable. The judgment clarifies that the expressions "such application," "heard," "as if such application were an appeal," and "so far as may be" indicate that the provisions of Section 129A, including subsection (5), are incorporated into Section 129D(4). This incorporation allows the Tribunal to condone delays if there is sufficient cause.

3. Application of the Limitation Act to the Customs Act:
The appellant argued that Section 129D(4) is self-contained and does not allow for condonation of delays beyond the prescribed period, supported by precedents like Commissioner of Central Excise v. Azo Dye Chem and Commissioner of Customs and Central Excise v. Hongo India Pvt. Ltd. However, the judgment distinguishes these cases, noting that Section 129A(5) explicitly provides for condonation of delays, which is applicable to Section 129D(4) applications as well.

4. Competence of the Tribunal to Condon Delay under Section 129D(4):
The judgment concludes that the Tribunal is competent to invoke Section 129A(5) to condone delays in applications under Section 129D(4). The provisions of Section 129A, including the power to condone delays, are integral to Section 129D(4) due to the legal fiction created by the statute. This interpretation aligns with the legislative intent to make the general provisions relating to appeals to the Tribunal applicable to applications under Section 129D(4).

Conclusion:
The Supreme Court held that the Tribunal has the authority to condone delays in applications under Section 129D(4) if there is sufficient cause, incorporating the provisions of Section 129A(5) into Section 129D(4). The appeal was dismissed, affirming the High Court's decision and clarifying the Tribunal's discretionary power in such matters.

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