2006 (7) TMI 231 - HC - Customs

Summary

Issues Involved:
1. Whether the issue of confiscation and fine can be decided without first deciding the liability to duty.
2. Whether the Tribunal can disregard the facts on record that the Nepal parties were non-existent and there was no corresponding evidence of export to Hongkong and USA from Nepal.
3. Whether the Tribunal is correct in holding that the advance licenses were valid till the same are cancelled.
4. Whether the Tribunal can reach the above conclusion without taking into account the law laid down by the Supreme Court in the case of M/s. Fedco (P) Ltd. & another v. S.N. Bilgrami & others.

Detailed Analysis:

1. Confiscation and Fine Without Deciding Liability to Duty:
The court examined whether the issue of confiscation and fine could be decided independently of the liability to duty. The Tribunal's decision-making process and the sequence in which issues were addressed were scrutinized to determine if the procedural and substantive legal requirements were met.

2. Disregarding Facts on Record:
The Tribunal's action of disregarding the facts that the Nepal parties were non-existent and that there was no evidence of export to Hongkong and USA from Nepal was contested. The court analyzed whether the Tribunal's decision was justified given the customs and commerce departments of the Nepal Government confirmed no such goods were received.

3. Validity of Advance Licenses:
The court considered whether the Tribunal was correct in holding that the advance licenses remained valid until they were formally cancelled. This issue involved interpreting the legal status of the licenses and the implications of their non-cancellation on the transactions in question.

4. Ignoring Supreme Court Precedent:
The court evaluated whether the Tribunal could reach its conclusions without considering the precedent set by the Supreme Court in M/s. Fedco (P) Ltd. & another v. S.N. Bilgrami & others. The relevance and applicability of the Supreme Court's decision to the present case were key points of analysis.

Condonation of Delay:
The court addressed the objection regarding the maintainability of the application on the ground of limitation. It was argued that the application was filed beyond the permissible period. The court referenced Section 130A of the Customs Act, which provides a 180-day period for filing such applications. The court noted that the application was within time based on the inward entry date of 22nd August 2000. Additionally, the court discussed the applicability of Section 5 of the Limitation Act, which allows for the condonation of delay unless expressly excluded by the statute. The court concluded that the power to condone delay is implicit in Section 130A of the Customs Act, supported by various judgments from different High Courts.

Objection on Maintainability:
The court also addressed the objection that the application under Section 130A of the Customs Act should be with respect to an order passed under Section 129B of the Act. It was clarified that the initial order by the Central Board of Excise and Customs, which was appealed to the CEGAT, falls within the purview of Section 129B, thus making the application valid and maintainable.

Conclusion:
The court identified three questions for determination and directed the Tribunal to draw up the statement of the case and refer it to the High Court. The application was allowed and disposed of accordingly.