TMI Blog2012 (11) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case the provisions relating to the appeals to the Tribunal have been made applicable to an application made under Section 129D(4) and it has been further provided that such application shall be heard as if it was an appeal made against the decision or order of the adjudicating authority. Any delay in presentation of appeal under Section 129A is condonable by the Tribunal by virtue of sub-section (5) thereof. It is competent for the Tribunal to invoke Section 129A(5) where an application under Section 129D(4) has not been made within the prescribed time and condone the delay in making such application if it is satisfied that there was sufficient cause for not presenting it within that period. - 7696 OF 2012 - - - Dated:- 30-10-2012 - R.M. Lodha and Anil R. Dave, JJ. JUDGMENT R.M. Lodha, J. Leave granted. 2. The High Court answered in the affirmative the following question: 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) [sic, 129D(4)] of the said Act, when there was sufficient cause available to appellant for not filing it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legality and propriety of the said order. The Committee on consideration of the entire matter directed the Commissioner to apply to the Tribunal for determination of the following points, namely; (1) whether taking into consideration the facts and circumstances noticed in the order, the order of the Commissioner was legally correct and proper; and (2) whether by an order under Section 129B of the Act, the Tribunal should set aside the order of the Commissioner dropping the proceedings against the CHA. 6. The Commissioner, accordingly, made an application under Section 129D(4) of the Act before the Tribunal. As the said application could not be made within the prescribed period and was delayed by 10 days, an application for condonation of delay was filed with a prayer for condonation. The Tribunal on 28.11.2005, however, rejected the application for condonation of delay and consequently dismissed the appeal by the following brief order: This appeal has been filed by the applicant Commissioner in pursuance of Order of Review passed by a Committee of Chief Commissioners. In the application for condonation of delay filed by the applicant Commissioner, a prayer has been made for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of Committee of Chief Commissioners of Customs or Commissioner of Customs to pass certain orders. (1) The Committee of Chief Commissioners of Customs may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner ... to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order; .. . .. . The Committee of Chief Commissioners of Customs shall make order under sub-section (1) . within a period of three months from the date of communication of the decision or order of the adjudicating authority; . Where in pursuance of an order under sub-section (1) . Commissioner of Customs makes an application to the Appellate Tribunal . within three months from the date of communication of the order under sub-section (1) . such applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard , as if such application were an appeal and so far as may be . The expression such application , inter alia, is referable to the application made by the Commissioner to the Tribunal in pursuance of an order under sub-section (1) of Section 129D. The period prescribed in Section 129D for making application does not control the expression such application . It is difficult to understand how an application made under Section 129D(4) pursuant to the order passed under sub-sections (1) or (2) shall cease to be such application merely because it has not been made within prescribed time. If the construction to the words such application is given to mean an application filed by the Commissioner before the Tribunal within the prescribed period only, the subsequent expressions heard , as if such an application were an appeal and so far as may be occurring in Section 129D(4) of the Act may be rendered ineffective. The view of the larger Bench of the CEGAT in Azo Dye Chem1 and the reasons in support thereof do not commend to us. We are unable to accept the view adumbrated by the CEGAT. The clear and unambiguous provision in Section 129D(4) that the application made therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application under Section 129D(4) if it is satisfied that there was sufficient cause for not presenting it within that period. 15. We do not think that any useful purpose will be served in discussing the cases cited by the learned counsel for the appellant in detail. In none of these cases, the question which has come up for decision in the present appeal arose. We shall, however, briefly refer to these decisions. 16. In Hongo India Pvt. Ltd2, the question for consideration before this Court was whether the High Court had power to condone the delay in presentation of the reference application under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period by applying Section 5 of the Limitation Act, 1963. Sub-section (1) of Section 35-H, which was under consideration before this Court, read as follows: 35-H. 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 35-C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that follow . 18. In Fairgrowth Investments Ltd.4, the question raised before this Court was whether the Special Court constituted under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 (for short, 1992 Act ) has power to condone the delay in filing a petition under Section 4(2) of the Act. Dealing with the said question, the Court considered various provisions of the Limitation Act, including Sections 5 and 29(2), and ultimately it was held that the provisions of the Limitation Act had no application in relation to a petition under Section 4(2) of the 1992 Act and the prescribed period was not extendable by the Court. 19. In UCO Bank.5, this Court restated, what has been stated earlier with regard to interpretation of statutes, that the court must give effect to purport and object of the enactment. 20. In light of the above discussion, we hold that it is competent for the Tribunal to invoke Section 129A(5) where an application under Section 129D(4) has not been made within the prescribed time and condone the delay in making such application if it is satisfied that there was sufficient cause for not presenting it within that period. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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