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TMI Blog2001 (7) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act. This order, which was passed on 26-10-1987, was challenged by the petitioner by way of an appeal under Sec. 128 of the Customs Act. That appeal came to be decided on 22-6-1988 by the Collector of Customs (Appeals), Customs House, Madras. The only relief that was granted to the petitioner in that appeal was that the penalty was reduced from Rs. 4,500/- to Rs. 1,500/-. However, the action of confiscation was not interfered with. This order was subsequently challenged by the petitioner before the Customs, Excise and Gold (Control) Appellate Tribunal (in short "CEGAT") by way of an appeal. However, by its order dated 5-1-1990, the Tribunal took the correct view that it had no jurisdiction to deal with the subject on account of the applicability of proviso to Sec. 129A of the Customs Act providing that if confiscation order related to any goods imported or exported as baggage, the Tribunal could have no appellate jurisdiction in respect of an order passed by the Collector (Appeals). The last sentence in the order of the Tribunal is very important. It reads under : "Since the Tribunal has no jurisdiction, the papers are directed to be returned to the party for presentati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to be ignored as time spent in prosecuting the other remedy in a bona fide manner. 4.Mr. K. Kumar, learned Counsel appearing on behalf of the respondents, however, contends that the advantage of Sec. 14 of the Limitation Act cannot be had by the petitioner because this is a case under the "special law" and there is a specific provision excluding the operation of Sec. 14 of the Limitation Act vide Sec. 29(2) of the Limitation Act. Learned Counsel points out that even if the advantage of Sec. 14 of the Limitation Act is given, even then, there is no proper explanation of the time spent by the petitioner. 5.On this backdrop, it will be proper to see as to whether firstly Sec. 14 of the Limitation Act could be made applicable to the present case. Before we go to that, it will be better to see the Sub-section (2) to Sec. 129DD of the Customs Act, which reads as follows : "An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made : Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of Sec. 129DD of the Customs Act whereunder, the power to condone the delay is restricted only to specified period of three months and not more while under Sec. 14 of the Limitation Act such limitation would not be there and the court would be in a position to condone the delay even of a longer period than three months. 7.In support of the proposition that Sec. 14 of the Limitation Act will not be fully available to the petitioner as it stood excluded in terms of Sec. 29(2) of the Limitation Act the learned Counsel for the respondents relied on a decision of the Supreme Court in The Sales Tax Commissioner, Uttar Pradesh v. Parson Tools & Plants, Kanpur (AIR 1975 SC 1039) and more particularly to the following observations, which are to be found in paragraphs 17 and 18. ".... if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum only up to a specified time-limit and no further, then the Tribunal concerned has no juridiction to treat within limitation, an application filed before it beyond su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Sec. 129DD of the Customs Act is clear enough to suggest that the unrestricted scope of Sections 5 and 14 of the Limitation Act is specifically excluded. 11.To get over this judgment, Mr. Abdul Nazeer, learned Counsel for the petitioner invited my attention to the Division Bench judgment of the Punjab & Haryana High Court in Vijay Brothers and Others v. Union of India and Others [1989 (40) E.L.T. 51 (P&H)]. There, distinguishing the judgment in the above quoted Parson Tools and Plants case, the Division Bench of the Punjab and Haryana High Court held that the provisions of Sections 5 and 14 of the Indian Limitation Act could not be said to have been excluded in the similar provision under Sec. 128 of the Customs Act and, therefore, Sec. 14(2) of the Limitation Act was available where an appeal under Sec. 128 of the Customs Act was filed beyond the period of limitation. In paragraph 9, the Division Bench of Punjab and Haryana High Court pointed out that in Parson Tools and Plants case, the Supreme Court was of the view that Sec. 10 of the U.P. Sales Tax Act expressly excluded the full applicability of Sections 5 and 14 of the Limitation Act on account of three features in the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of Limitation Act. We are, therefore, unable to agree that the judgment in AIR 1975 SC 1039 is any way applicable to the interpretation of Sec. 128 of the Customs Act vis-a-vis Section 29(2) of the limitation Act." Mr. Abdul Nazeer, learned Counsel very heavily relies on these observations and says that when it has been held already by the Divison Bench of Punjab and Haryana High Court that Sec. 14 of the Limitation Act would be applicable even in case of the appeals under Sec. 128 of the Customs Act, there is no reason why the same should not be applicable in case of a revision under Sec. 129DD of the Customs Act. 12.I am unable to agree with the contention. If we see the reasons given by the Division Bench of the Punjab and Haryana High Court, it will be seen that that judgment turned on the fact that they were dealing with an ''appeal'' under Sec. 128 of the Customs Act, which was of a regular nature. I am not dealing herewith an appeal. I am dealing herewith the revisional power, which remedy is available only after exhausting the two authorities below. There is an appeal already filed in the present matter which appeal came to be dismissed and it is only thereafter that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the open court on 5-1-1990. In fact, from 5-1-1990 the petitioner, who was represented by two Advocates, should have started moving to file a revision if he was so interested. The petitioner waited for the order to be posted to him on 16-4-1990. The petitioner cannot take advantage of the period between 5-1-1990 and 16-4-1990 because the order of the Tribunal was declared in the open court and the petitioner was represented by two advocates. Further, the petitioner has not offered any explanation as to why he waited till 27-7-1990 to post the revision to the Central Government. The only explanation which was tried to be given during the course of the arguments is that the petitioner kept on searching the records and the records were not to be traced in the office of the Tribunal. I am afraid, this explanation is not be found in the affidavit filed by the petitioner either before me or before the Central Government for condonation of delay. This is clearly an afterthought. Therefore, the petitioner also cannot get the advantage of the period between 16-4-1990 and 4-10-1990 when the revision reached the Central Government. Therefore, the whole period between 5-1-1990 and 4-10- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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