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TMI Blog2006 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... effected to certain parties in Nepal which were found to be fake transactions. Therefore, notices were issued under Section 124 of the Customs Act, 1962 read with proviso of Section 28(1) and Section 143-A thereof for determining payment of customs duty. The show cause notice was challenged by the respondents before the Commissioner of Customs by filing an appeal. The Commissioner of Customs, Excise and Gold (Control) by his order dated 30th July, 1996 discharged the show cause notice, holding that the same is bad in law. The Central Board of Excise and Customs, however, reviewed the order on 9th July, 1997. An appeal was carried against the said order to the Central Excise and Gold (Control) Appellate Tribunal (CEGAT for short) which allowed the appeal by its order dated 9th June, 2000. 4. Feeling aggrieved, the Revenue has preferred the present application for making reference of certain important questions of law for determination of the CEGAT. The application is filed on 15th February, 2001. The application is filed without any motion for condonation of delay since the Revenue has come out with a case that there was no delay caused in filing of the application. Still, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Customs Act, with which we are concerned, reads as follows : "130A. Application to High Court. - (1) The Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 129B passed before the 1st day of July 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application to the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such other of the Tribunal." 8. As far as the Central Excise Act, 1944 is concerned, similar section for reference to the High Court is section 35H. The relevant part of that section is sub-section (1) which reads as follows : "35H. Application to High Court.- (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if in any case where the Appellate Tribunal has been required by an assessee to state a case the Appellate Tribunal refuses to do so on the ground that no question of law arises, the assessee may, within thirty days from the date on which he receives notice of refusal to state the case, withdraw his application, and if he does so, the fee paid by him under sub-section (1) shall be refunded to him." 11. It is material to note that all these sections provide for a certain period within which these applications are to be filed, but they do not make a specific provision for condonation of delay in the event the application is filed beyond the period specifically provided under the Act. 12. As far as the Acts passed by the State Legislature are concerned, we have one more example, i.e. section 61 of the Bombay Sales Tax Act whereunder also there is a similar provision without any provision for condonation of delay. This section reads as follows : "61. Statement of case to the High Court.- (1) Within ninety days from the date of the communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court and the signature of the Registrar, and the Tribunal shall dispose of the case accordingly. (5) Where a reference is made to the High Court under this section, the costs including the disposal of the fee referred to in sub-section (1), shall be in the discretion of the Court. (6) The payment of amount of the tax, penalty, interest or sum forfeited if any, due in accordance with the order of the Tribunal in respect of which an application has been made under sub-section (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof, but if such amount is reduced as the result of such reference, the excess tax, penalty, interest or sum forfeited paid shall be refunded in accordance with the provisions of section 43." 13. Having noted these relevant provisions the question comes up as to whether by any implication, it can be said that the Court has power to condone delay in the event such applications are filed beyond the time provided therefor. A Division Bench of Delhi High Court in Prem Chand Bansal and Sons v. Income Tax Officer (Per Lahoti J., as His Lordship then was) reported in 237 (1999) I.T.R. 65, has placed rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Instrument Co. (India) Ltd. - (1992) 64 Taxman 6." 14. (i) We have a judgment of a Full Bench of the Madhya Pradesh High Court in the case of Nihalkaran v. Commissioner of Wealth Tax - 168 (1987) ITR 308, which is on section 27 of the Wealth Tax Act, 1957. This Full Bench (Per. N.D. Oza, CJ., as he then was in that Court) has also relied upon section 29(2) of the Limitation Act. The Full Bench held that section 27 of the Wealth Tax Act inter alia would apply to a special or local law unless their application is expressly excluded with the result that unless the application of section 5 was expressly- excluded to an application under section 27(3) of the Wealth Tax Act, it would apply to the same. (ii) We have similar judgments from different High Courts. Thus, we have a judgment of the Punjab and Haryana High Court concerning the applicability of section 5 of the Limitation Act to a reference application under the Haryana General Sales Tax Act in the case of State of Haryana v. Free While (India) Ltd.- 104 (1997) ITR 259. This judgment (Per Ashok Bhan J., as he then was) held that section 5 of the Limitation Act will get attracted to an application for reference in a similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er as it deems fit." 17. The question before the Apex Court was as to whether such an application raising objection could be filed beyond the period of 30 days. The Apex Court noted that as far as that Act is concerned, wherever a provision for condonation of delay was to be made, the statute did provide for the same and this could be seem under section 10(3) of the Act. The Apex Court also referred to section 13 of the Act in para 19 of the judgment which lays down that this Act has an overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Referring to this specific provision, the Court came to the conclusion that the application under section 4(2) could not be said to be containing the liberty to apply for condonation of delay. The Court held that the provision of condonation of delay has to be specifically provided or has to be read by implication. In view of the aforesaid reading of the statute, the Apex Court held that the section could not be said to be containing the provision for condonation of delay. Mr. Sahu pressed the above judgment into service and submitted that in view of these guidelines from the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained code in so far as the provisions about limitation are concerned. In this view of the matter, we are not inclined to accept the submission of Mr. Sahu. We deem it proper to hold that there is no delay in filing of the application under Section 130A of the Customs Act and if at all there is some delay then it is liable to be condoned. 20. The second submission of Mr. Sahu was that under section 130A of the Customs Act, the application has to be with respect to an order passed under section 129B of the Act. He points out that in the instant case, it was initially an order of the Central Board of Excise and Customs referable under section 129D of the Customs Act. It is thereafter that appeals were preferred to the CEGAT and which appeals have come to be decided by order dated 9th June 2000 with respect to which this reference is sought. Now, in this connection, we must refer to sub-section (4) of section 129D of the Customs Act which in the later part provides that provisions of this Act regarding appeals including the provisions of sub-section (4) of section 129A shall, so far as may be, apply to an application. Inasmuch as this sub-section (4) specifically provides that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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