Case Note & Summary
The Commissioner of Customs (Gen), Mumbai, filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) against an order of the Commissioner of Customs (Appeals) dated 30th June 2008. The appeal was filed under Section 129D(3) of the Customs Act, 1962, which provides for appeals by the department against orders of the Commissioner of Customs. The appeal was filed beyond the prescribed period of limitation, and the appellant sought condonation of delay. The CESTAT dismissed the appeal as time-barred, holding that it had no power to condone delay in appeals filed under Section 129D(3). The Commissioner of Customs then filed this appeal under Section 130 of the Customs Act before the Bombay High Court. The High Court framed a substantial question of law regarding whether CESTAT has discretionary power under Section 129A(5) to condone delay in appeals under Section 129D(3). The Court examined the provisions of Sections 129A and 129D of the Customs Act. Section 129A provides for appeals to CESTAT against orders of Commissioner of Customs (Appeals) and other authorities. Sub-section (5) of Section 129A empowers CESTAT to condone delay in filing appeals under that section if sufficient cause is shown. Section 129D(3) provides that the Commissioner of Customs may direct the proper officer to appeal to CESTAT against an order of the Commissioner of Customs. The Court noted that Section 129D(4) deems such appeals to be filed under Section 129A. Therefore, the power to condone delay under Section 129A(5) applies to appeals filed under Section 129D(3) as well. The Court held that CESTAT has discretionary power to condone delay if sufficient cause is shown. The Court set aside the CESTAT order and remanded the matter to CESTAT for consideration of the condonation of delay application on its merits. The appeal was allowed.
Headnote
A) Customs Law - Condonation of Delay - Section 129A(5) and Section 129D(3) of the Customs Act, 1962 - Discretionary Power of CESTAT - The issue was whether CESTAT can condone delay in filing an appeal under Section 129D(3) (appeal by department against order of Commissioner of Customs) when the appeal is filed beyond the prescribed period. The High Court held that Section 129A(5) applies to all appeals under Section 129A, including those filed under Section 129D(3) which are deemed to be appeals under Section 129A. The power to condone delay is discretionary and can be exercised if sufficient cause is shown. The Court set aside the CESTAT order dismissing the appeal as time-barred and remanded the matter for consideration of condonation of delay on merits. (Paras 1-10)
Issue of Consideration
Whether the CESTAT has discretionary power under section 129A(5) of the Customs Act, 1962 to condone the delay caused in filing the appeal under section 129D(3) of the said Act, when there was sufficient cause available to appellant for not filing it within the prescribed period before the Appellate Authority?
Final Decision
The appeal is allowed. The order of CESTAT dated 30th June 2008 is set aside. The matter is remanded to CESTAT for consideration of the application for condonation of delay on its own merits in accordance with law.
Law Points
- Condonation of delay
- Discretionary power
- Customs Act
- 1962
- Section 129A(5)
- Section 129D(3)
- Sufficient cause
- Appellate Tribunal
