2018 (3) TMI 1150 - SC - Customs

Recovery of duty - import of Low Ash Matellurgical Coke claiming the benefit of certain advance licences allegedly purchased by the respondent Company - only submission made by the learned counsel for the appellants is that when such an application under Section 130A seeking a reference is made, the High Court is mandatorily obliged to call for a statement from the Tribunal before deciding the application - Held that - We do not find anything in the text of Section 130A which implies that the High Court is mandatorily required to call for a statement from the Tribunal in every case, where a reference is made. We say so because of the language of SubSection 4 which opens with an if - having regard to the fact that it is a question of law, we deem it appropriate that the matters be decided by a larger Bench of appropriate strength. Matter placed before Hon ble the Chief Justice of India for appropriate further course of action.

Summary

Issues:
1. Show cause notice under Section 28(1) of the Customs Act issued beyond the statutory limitation period.
2. Interpretation of Section 130A of the Customs Act regarding the mandatory requirement for the High Court to call for a statement from the Tribunal when a reference is made.

Analysis:
1. The case involved a show cause notice under Section 28(1) of the Customs Act issued to the respondent Company beyond the statutory limitation period of six months. The notice was related to the recovery of duty not paid by the respondent in connection with import transactions of Low Ash Metallurgical Coke. The appellants contended that the licenses claimed by the respondent were not valid at the time of import, leading to the issuance of the notice. The Customs, Excise and Gold Appellate Tribunal (CEGAT) opined that the Department was not justified in invoking the extended period of limitation. The appellants sought a reference under Section 130A of the Customs Act, which was subsequently repealed. The High Court dismissed the application, leading to the appeals before the Supreme Court.

2. The main submission before the Supreme Court was regarding the interpretation of Section 130A of the Customs Act. The appellants argued that the High Court was mandatorily required to call for a statement from the Tribunal before deciding on the application for reference. The appellants relied on a previous order of the Court to support their argument. However, the Supreme Court noted that there is no explicit mandate in Section 130A requiring the High Court to call for a statement in every case of reference. The Court observed that the language of Subsection 4 of Section 130A uses the term "if," indicating discretion rather than a mandatory requirement. Despite the appellants' argument based on the previous order, the Court found it difficult to accept the submission. As the issue involved a question of law, the Supreme Court directed the matters to be decided by a larger Bench for appropriate consideration.

This detailed analysis of the judgment provides insights into the issues related to the show cause notice under Section 28(1) of the Customs Act and the interpretation of Section 130A regarding the High Court's obligation to call for a statement from the Tribunal in cases of reference.