TMI Blog2009 (6) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... delay for just and valid reason, which in our considered opinion, has not been properly exercised by the appellate authority as already observed. Thus allow the petition and matter is remitted to the Appellate Authority. - 10412 of 2007(T/TAR-DB), - - - Dated:- 9-6-2009 - P.D. Dinakaran, C.J. and V.G. Sabhahit, J. Shri M.R.C. Ravi, Advocate, for the Petitioner. Shri N.R. Bhaskar, Advocate, for the Respondent. [Judgment per: P.D. Dinakaran, C.J.]. - This Writ Petition is directed against the order dated 3-4-2007 made in Appeal No. C/COD/192/2007, C/St/123/2006 in C/273/2006 by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore in exercise of its power under Section 129B of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the provisions of the notification No. 10/95-CE. However, I allow them an option to redeem the same by payment of a fine of Rs. 1,00,000/- within 30 days of receipt of the order. (D) I impose a penalty of Rs. 5,00,000/- on M/s. BBL under the provisions of Section 117 of the Customs Act, 1962 for contravention of the conditions of Notifications (196/94-Cus. and 10/95 CE) and for contravening the terms and condition of B16 Bond, General Bond, Legal undertaking and letter of permission; and (E) I impose a penalty of Rs. 10,000/- on Shri M. Srinivasulu, General Manager (Commercial) of M/s. BBL under the provisions of Section 112 of Customs Act, 1962." 2. By the impugned proceedings dated 3-4-2007, the Appellate Authority, in exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order did not bring to his knowledge. In terms of affidavit also, it is clear that the order was served on the appellants and they have not taken any steps to file the appeal. There is no explanation for the delay of 58 days. The negligence is patent on record and hence, there is no ground to deny the delay in the light of the judgments cited by the JCDR. The COD application is dismissed. As a result, the stay application and appeal are also dismissed on the ground of limitation." 4.2 Aggrieved by the said order, the petitioner has come up with the present Writ Petition. 5. Before this Court also, the petitioner has explained in detail the reasons for condoning the delay of 58 days in filing the above appeal, which reads thus: "8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at very same reason was put-forth before the Appellate Authority and that the Appellate Authority refused to condone the delay. 6.2 In our considered opinion, we are satisfied that the Appellate Authority has failed to exercise its rights conferred under sub-section (5) of Section 129A of the Customs Act and requires interference of the order passed by the appellate authority. 6.3 Of course, in Commissioner of Customs Central Excise v. M/s. Hongo India (P) Ltd. Anr., (Civil Appeal No. 1939/2009 - Arising out of S.L.P. (C) No. 14467/2007) [2009 (236) E.L.T. 417 (S.C.)], the Apex Court held as hereunder: "18...........While considering the very same question, namely, whether the High Court has power to condone the delay in presentat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 20. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act." 6.4 We have carefully gone through the said decision of the Apex Court. The said decision of the Apex Court is related to three appeals, relating to the reference application made in the High Court under Section 35H(1) of the Central Excise Act, to which, concededly, Section 5 of the Limitation Act is not applicable. Consequently, taking note of the above fact, the Apex Court in the case referred to above by its order dated 27-3-2009 held that in the absence of power under Section 35H(1) of the Central Excise Act, the High Court has no power to condone the delay. But in the instant case, sub-section (5) of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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