Writ Appeal No. 335 of 2006 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.11.2008CORAM:THE HONOURABLE MR.JUSTICE S.J. MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE V. DHANAPALANWrit Appeal No. 335 of 2006 & W.A.M.P.No. 699 of 20061.The Assistant Commissioner of CustomsDBK – ManualCustoms House60 Rajaji Salai, Customs HouseChennai2.The Commissioner of Customs (Appeals)Customs House60 Rajaji salaiChennai3.The Deputy Commissioner of Customs (RRU)Tax Recovery OfficeNo. 60 Rajaji SalaiCustom House, Chennai.. Appellants(Respondents)vs.C. Bharani ExportsRep. by its Proprietor C. VemuluNo. 54 Basavaiyan StreetOld WashshermenpetChennai .. Respondent(Petitioner)Appeal filed under Clause 15 of the Letters Patent against the order of the single Judge dated 24.01.2006 in W.P.No. 26479 of 2005.Petition presented to this Court to issue a Writ of certiorari to quash the order in C48/788/D/2004 - Sea dated 20.1.05 inC.Cus. No.11/05 passed by the 2nd Respondent. For appellants : Mr. T. S. SivagnanamFor Respondent : No appearance https://hcservices.ecourts.gov.in/hcservices/ Judgment(Judgment of the Court was delivered by S.J. Mukhopadhaya, J.)This appeal has been preferred by the Assistant Commissioner of Customs and two others against the order dated 24th January 2006 inW.P. No. 26479 of 2005 whereby the learned Judge while observing that the respondent (writ petitioner) has given a valid explanation for the delay, set aside the order passed by the appellate authority and remitted the matter with direction to decide the appeal in accordance with law.

The main plea taken by the appellants is that the High Courtunder Article 226 of the Constitution of India cannot condone the limitation beyond the period prescribed under the statute for the purpose of determination of appeal on merits.

It appears that the respondent (writ petitioner), who was carrying on business of exporting cotton shirts, exported goods to the value of Rs. 8,45,082/- under Shipping Bill No. 650 dated 1st May1988 and claimed drawback for a sum of Rs.1,43,834/-, which was allowed and paid back on 6th January 1998. Subsequently, the first appellant herein issued a show cause notice calling upon the respondent (writ petitioner) as to why the drawback paid to him be not recovered on account of non-realisation of the sale proceeds within the period allowed under the Foreign Exchange Regulation Act. Having not received any reply, the first appellant passed an order directing the respondent (writ petitioner) to pay a sum ofRs.1,43,834/-. Against the said order, the respondent (writ petitioner) preferred an appeal before the second appellant but aftera delay of 46 days. The second appellant - appellate authority refused to condone the delay and dismissed the appeal as time barred.

Learned counsel appearing on behalf of the appellants submitted that the appellate authority has power to condone 30 days delay under the proviso to Section 128(1) of the customs Act, 1962.In the present case, as the appeal preferred by the respondent (writ petitioner) was with 46 days delay, the appellate authority, having no jurisdiction to condone such delay, rightly dismissed the appealas time barred. He also placed reliance on a Division Benchdecision of this Court in Indian Coffee Workers' Co-op. Society Ltd.v. Commissioner of Commercial Taxes, Chennai and others [2002 (1)CTC 406] and some other judgments.

Inspite of service of notice, the respondent refused to appear and contest this appeal.

We have heard the learned counsel appearing on behalf of the appellants. https://hcservices.ecourts.gov.in/hcservices/

The respondent (writ petitioner) has not disputed that the appeal was filed with 46 days delay and that the appellate authority was empowered to condone only 30 days delay under the proviso to Section 128(1) of the Customs Act, 1962.

Similar question fell for consideration before a DivisionBench in Indian Coffee Workers' Co-op. Society Ltd. case [2002 (1)CTC 406] (supra) wherein on behalf of the assessee, similar plea was taken that this Court has got ample power under Article 226 of the Constitution of India to condone the delay and can direct the appellate authority to dispose of the matter on merits. Afterhearing the parties, the Division Bench held as follows:-"The legal position is as follows: (a)An appeal under Section 30(1) of the Tamil NaduGeneral Sales Tax Act, 1959 has to be filed within 30 days before the appellate AssistantCommissioner. The appellate AssistantCommissioner is empowered to condone the delay for further period of 30 days if sufficient cause for not presenting the appeal in time is shown and satisfied by the appellate authority. (b)Under no circumstances, the appellate authority has power to condone the delay beyond 30 days.