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TMI Blog2013 (7) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... to the right remedy available to him, namely, the filing of an application for reference, which alone was the remedy available in the instant case. In such circumstances, merely for the reason that before the period of 60 days expired, a wrong decision was taken to move the Apex Court by filing an appeal and within 60 days, a right decision was taken by the Central Board of Excise and Customs to file an application for reference before the CEGAT and within 13 days thereafter such a step was taken, it cannot be said that the petitioner did not act with due diligence. Order passed by the CEGAT declining to condone the delay of 13 days in filing the application for reference and consequently dismissing the application for reference requires to be set aside and the delay in filing the reference application condoned. Territorial jurisdiction to entertain this original petition. - Held that:- In the instant case it is not in dispute that the goods were imported through Cochin Port. The original order of adjudication was made at Cochin. It was that order which gave rise to the appeal as well as the application for reference before the CEGAT. In such circumstances I find no merit or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 70(2) by informing the canalizing agency about it. The first respondent claimed that the term seeds occurring in the description of the licence would cover rape seed also. The Collector of Customs, Cochin, took the stand that as rape seed is specifically mentioned in Appendix V, Part B it falls within the purview of paragraph 197(2) and paragraph 75 of the Import Policy and inasmuch as the requirements of paragraph 76 have not been complied with, the licences produced were not valid for import of the goods and the goods are liable to confiscation under Section 111B of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports Control Act, 1947. The Collector of Customs, Cochin, accordingly issued Ext. P1 order, dated 23-9-1987 confiscating the goods. He however, gave the first respondent importer an option to redeem the goods after paying a fine of ₹ 20,00,000/- and imposed on the first respondent importer a personal penalty of ₹ 7,50,000/- under Section 112 of the Act. 3. The first respondent importer canvassed the correctness of Ext. P1 order by filing an appeal before the CEGAT. The first respondent contended before the CEGAT that rape seed is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay of 13 days in filing the application for reference under sub-section (1) of Section 130 of the Act. Sri. John Varghese, learned counsel appearing for the petitioner, submitted that the origin of the dispute which was the subject matter of the adjudication by the Collector of Customs and the appeal before the CEGAT and the subject matter of the application for reference was the import of rape seed through Cochin Port, that the original order which was set aside by the CEGAT was passed at Cochin and therefore, this Court has jurisdiction to entertain the original petition. The learned counsel appearing for the petitioner also contended that the High Court of Chennai also has jurisdiction to entertain the original petition for the reason that the appellate order (Ext. P2) as well as the order dismissing the application to condone the delay in filing the application for reference (Ext. P5) were passed at Chennai and in such circumstances the petitioner has the option to institute the original petition in either of the two High Courts, viz. this Court or the High Court at Chennai. The learned counsel for the petitioner also placed reliance on the decisions of the Apex Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for reference, that the effect of the order dismissing the application to condone the delay is at Chennai, the situs of CEGAT, that there is no averment in the original petition that any part of the cause of action has arisen within the State of Kerala, that the averments in the original petition are with reference to the delay in filing the application for reference, that the relief sought is also with reference to the refusal to condone the delay in filing the application for reference, that no part of the cause of action which led to the filing of the instant original petition arose at Cochin and therefore, this Court has no territorial jurisdiction to entertain the original petition. As regards the merits of the application to condone the delay, learned counsel for the first respondent contended that the petitioner is a Senior Officer of the Department of Customs and not a novice and therefore, the explanation offered in the application to condone the delay, viz. that the Commissioner of Customs decided to file an appeal before the Apex Court after reviewing the appellate order, prepared the appeal memorandum and despatched it to the Central Board of Excise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the application to condone the delay in filing the application for reference, that the said cause of action arose solely at Chennai and not within the local limits of the territorial jurisdiction of this Court and therefore, the instant original petition is not maintainable in this Court. Relying on the decisions of the Apex Court in State of West Bengal v. Administrator, Howrah Municipality, (1972) 1 SCC 366, Shanti Prasad Gupta v. Dy. Director of Consolidation, 1981 (Supp) SCC 73 and Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563 = 2012 (277) E.L.T. (289) (S.C.) the learned counsel appearing for the first respondent contended that in the matter of condonation of delay a liberal stand can be adopted to serve substantial justice only in cases where there is no gross negligence or deliberate inaction or lack of bona fides, that in the instant case the said principle can have no application and therefore, no interference is called for with the impugned order. The learned counsel for the first respondent contended relying on the decision of the Apex Court in Mohd. Yunus v. Mohd. Mustaqim, AIR 1984 SC 38, Mohan Amba Prasad Agnihotri v. Bhaskar Balwant Aher, (2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the goods on payment of redemption fine of ₹ 20,00,000/-. That led to an appeal under Section 129 of the Act before the CEGAT at Chennai. By a majority decision, the CEGAT held in favour of the importer and by Ext. P2 order dated 28-12-1995, set aside the order passed by the original authority. A copy of Ext. P2 order was communicated to the Commissioner of Customs, Cochin and it was received by him only on 8-4-1996. This fact which had been specifically averred in the application for reference was not denied by the first respondent. Under Section 130(1) of the Act as it then stood, an application for reference had to be filed within 60 days from the date on which the Commissioner of Customs or the other party to the appeal which was disposed of by CEGAT is served with notice of the order under Section 129B of the Act. The proviso to Section 130(1) of the Act however empowered the Appellate Tribunal to allow the application for reference to be presented within a further period not exceeding 30 days, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the period of 60 days specified in Section 130(1) of the Act. 9. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order discloses that the CEGAT dismissed the application to condone the delay on the ground that the Commissioner of Customs, Cochin (the petitioner herein) has not explained what transpired between 6-6-1996 to 20-6-1996. As stated earlier, the first respondent herein did not enter appearance and contest the application. Having regard to the fact that the appellate order of the CEGAT had referred in detail to the contentions of both sides and the question of law which was required to be referred to the High Court, I am of the considered opinion that in the absence of any objection to the application to condone delay, the CEGAT erred in holding that the petitioner has not shown sufficient cause for not filing the reference application during the period between 6-6-1996 to 20-6-1996. The preparation of a reference application requires care and attention and it has to be done properly after adverting to the various contentions raised by both parties before the CEGAT and the finding entered by the CEGAT on the issues which arose before it. In any case, as the delay in filing the application was only 13 days, the last date being 7-6-1996 and it was within the condonable limit, the CEG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial justice, though in that case the Apex Court held that on the facts and circumstances there was no proper explanation for the delay and therefore the appeals are liable to be dismissed as barred by limitation. Having regard to the facts noticed above including the fact that the first respondent had not entered appearance and opposed the application to condone delay and in the absence of a case for the first respondent that there was gross negligence or lack of bona fides on the part of the petitioner, I am not persuaded to agree with the learned counsel appearing for the first respondent that the petitioner has not made out a case for condonation of the short delay of 13 days in filing the application for reference. I accordingly hold that Ext. P5 order passed by the CEGAT declining to condone the delay of 13 days in filing the application for reference and consequently dismissing the application for reference requires to be set aside and the delay in filing the reference application condoned. 12. I shall next consider the question whether this Court has territorial jurisdiction to entertain this original petition. It is not in dispute that the goods in question were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The learned counsel appearing for the first respondent, however, objects to the maintainability of the original petition in this Court for want of jurisdiction contending that dispute in this original petition, namely, the refusal by the CEGAT to condone the delay in filing the application for reference cannot give rise to a cause of action so as to confer territorial jurisdiction on this Court. It is contended that the facts pleaded in this original petition are in relation to the refusal to condone delay which alone has a bearing on the dispute involved in the instant case, that it took place at Chennai within the limits of the territorial jurisdiction of the High Court at Chennai and therefore it cannot be said that any part of the cause of action for this original petition has arisen within the local limits of the jurisdiction of this Court. The learned counsel contended that the import of goods at Cochin or the fact that the order of adjudication was passed at Cochin has no direct nexus with the order passed by the CEGAT dismissing the application to condone the delay and consequently the very application for reference itself. The learned counsel placed reliance on the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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