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TMI Blog2022 (11) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No.1) is a judicial body and over its actions Respondent No.2 has no control. In those circumstances, to construe the time limit for the submission of the case as mandatory might be to deprive Respondent No.2 of its right to have a question of law considered by the High Court which the Customs Act intends to be so considered. A party should not be deprived of a statutory right for no fault of its own, but for the fault of a public body over which it has no control. Respondent No.1 has no excuse for not filing the statement of case at least with regard to the three files made available, one of which is of petitioner herein - Respondent No.1 (CESTAT through its Registrar) is therefore, directed once again to submit the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain substantial questions of law and directed Respondent No.1, i.e., The Customs Excise And Service Tax Appellate Tribunal (CESTAT) to send the statement of case to the Bombay High Court as expeditiously as possible. Respondent No.1 has not sent the statement of the case till date. Petitioners have been dutifully renewing the Bank Guarantee since 2002 and till date incurred about Rs.10 Lakhs to keep the Bank Guarantee alive. Section 130(A)(4) of the the Customs Act, 1962 (the Customs Act) provides time limit of 120 days to submit the statement of facts and since it has not been submitted the court should hold that it is now time barred and also dismiss the said application for want of prosecution. 3. Ms. Bharucha submitted copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irit D. Chauhan, Assistant Commissioner of Customs (Preventive) affirmed on 29th September 2021, copy whereof is annexed to the petition, as well as the communication that Ms. Bharucha tendered and we can come to a conclusion that Respondent No.2 had not abandoned the said Application. It appears that in three out of eight references, one of which is that of petitioner herein, papers have been submitted to CESTAT. Moreover, Mr.Adke states that even petitioner has also directly given a copy to CESTAT to Respondent No.2. 8. The time limit of 120 days prescribed in Section 130(A)(4) of the Customs Act, in our view, should be construed as being directory only and not imperative. The CESTAT (Respondent No.1) is a judicial body and over its ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal and, accordingly, it was directed by an administrative order that references made after the expiry of the period prescribed by the Act should be accepted only provisionally, subject to all just exceptions that might be taken at the hearing on the ground of limitation. The order was directed to be incorporated in the paper book of every case in which the question was involved so that the matter might be judicially examined. The present case is the first in which the matter has come up for consideration and we have heard the learned counsel for the Commissioner of Income-tax and the assessee. Both contended that the provision contained in Section 66(1) as to the time within which the reference was to be made was not mandatory, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal shall be further considered by the High Court, if either of the parties so desires and it is in furtherance of that object that a duty has been laid on the Tribunal to place such questions before the High Court. The Tribunal is a judicial body and over its actings the parties have no control. In those circumstances, to construe the time-limit for the submission of the case as mandatory might in a case be to deprive a party of his right to have a question of law considered by the High Court which the Act intends to be so considered and in view of that possibility, the provision should be construed as only directory so that a party may not be deprived of a statutory right for no fault of his own, but for the fault of a public body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What the party who has won before the Tribunal is entitled to insist on is that his opponent, if he seeks to have the question re-opened and examined by the High Court, must make his application for a reference within the time limited by section 66 (1) and that if he fails to apply within such time, an application made later must not be entertained. After the expiry of the period of limitation for making an application for a reference, the finality of the decision of the Tribunal would become absolute. But the party who has won before the Tribunal cannot properly plead limitation against, his opponent for some default which not he, but the Tribunal has committed and therefore section 66 (1), in my view, cannot be construed as laying down t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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