COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOAversusM/S ADANI EXPORTS LTD.

                        [2020] 3 S.C.R. 887                            887


             COMMISSIONER OF CUSTOMS AND                               A
                 CENTRAL EXCISE, GOA
                                 v.
                   M/S ADANI EXPORTS LTD.
                  (Civil Appeal No. 6021 of 2009)                      B
                       FEBRUARY 11, 2020
            [R. F. NARIMAN, S. RAVINDRA BHAT
             AND V. RAMASUBRAMANIAN, JJ.]
      Customs Act, 1962: s.130A (1) and (4) – High Court is not        C
mandatorily obligated to call for a statement from the Tribunal in
every case before deciding application under s.130A – A reading
of s.130A (1) and (4) makes it clear that if the Commissioner of
Customs or other party within the prescribed period of limitation
applies in the prescribed form to the High Court to direct the
Appellate Tribunal to refer to the High Court any question of law      D
arising from such order of the Tribunal, the High Court may do so
– Thus, High Court has a discretion on the facts of each case either
to do so or not to do so.
      Disposing of the appeals, the Court
                                                                       E
       HELD: The High Court is not mandatorily required to call
for a statement from the Tribunal in every case, where a reference
is made. This is so because of the language of Sub-Section 4 which
opens with an ‘if’. A reading of Section 130A (1) & (4) would
make it clear that if the Commissioner of Customs or other party
                                                                       F
within the prescribed period of limitation applies in the prescribed
form to the High Court to direct the Appellate Tribunal to refer
to the High Court any question of law arising from such order of
the Tribunal, the High Court may do so. What is clear on a reading
of sub-section (4) is that the High Court has a discretion on the
facts of each case either to do so or not to do so. This becomes       G
absolutely plain from the first word in sub-section (4), namely,
“if”. There is nothing in the language of Section 130A which first
mandatorily obliges the High Court to call for a statement from
the Tribunal before deciding any such application. [Paras 2, 3]
[889 E-H; 890-A]                                                       H
                                 887
888            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A           Commissioner of Customs, Bangalore v. Central
            Manufacturing Tech. Institute 2002 (146) ELT 27 –
            overruled.
                              Case Law Reference
      2002 (146) ELT 27               overruled                 Para 3
B
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6021
      of 2009.
            From the Judgment and Order dated 09.12.2003 of the High Court
      of Bombay at Goa in Reference Application Under Customs Act No. 2
C     of 2003.
            With
            Civil Appeal Nos. 6072-6073 of 2009.
            K. Radhakrishnan, Tarun Gulati, Arijit Prasad, Sr. Advs., Ms. Shirin
D     Khajuria, B. Krishna Prasad, Ejaz Maqbool, Ms. Tanya Shree,
      Muhammad Isa M. Hakim, Ms. Aishwarya Sarkar, Kumar Visalaksh,
      Udit Jain, Mrs. Bina Gupta, Advs. for the appearing parties.
            The Judgment of the Court was delivered by
            R. F. NARIMAN, J.
E
             1. Having heard Mr. K. Radhakrishnan, learned Senior Counsel
      appearing on behalf of the Revenue for sometime and after perusing the
      reference order to a larger Bench dated 14.03.2018, it is first necessary
      to set out Section 130A(1) & (4) of the Customs Act.

F           “130A. Application to High Court.- (1) The Commissioner of
            Customs 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 129B passed before the 1st day of July, 2003 (not
            being an order relating, among other things, to the determination
            of any question having a relation to the rate of duty of customs or
G           to the value of goods for purposes of assessment), by application
            in the prescribed form, accompanied, where the application is made
            by the other party, by a fee of two hundred rupees, apply to the
            High Court to direct the Appellate Tribunal to refer to the High
            Court any question of law arising from such order of the Tribunal.”
H
COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOA                                 889
    v. M/S ADANI EXPORTS LTD. [R. F. NARIMAN, J.]

      (4) If, on an application made under sub-Section (1), the High            A
      Court directs the Appellate Tribunal to refer the question of law
      raised in the application, the Appellate Tribunal shall, within one
      hundred and twenty days of the receipt of such direction, draw up
      a statement of the case and refer it to the High Court.”
      2. Mr. K. Radhakrishnan referred to an order of 2 learned Judges          B
of this Court in Commissioner of Customs, Bangalorev. Central
Manufacturing Tech. Institute reported in 2002 (146) ELT 27 which
reads as under:
      “1. Leave granted. The High Court rejected an application for
      reference of the question of law arising from the order of CEGAT          C
      and the High Court agreed with the view taken by the Tribunal
      and disposed of the matter stating that the question of law does
      not arise from the order of CEGAT. That was not the stage at
      which the High Court could have expressed its views on merits of
      the matter and the appropriate course for the High Court was to           D
      call for a statement and then decide the matter in an appropriate
      manner as provided under the law.
      2. In that view of the matter, we set aside the order made by the
      High Court and remit the matter to the High Court for fresh
      examination. The appeal is allowed accordingly.”                          E
       We do not find anything in the text of Section 130A which implies
that the High Court is mandatorily required to call for a statement from
the Tribunal in every case, where a reference is made. We say so because
of the language of Sub-Section 4 which opens with an ‘if’.
       3. A reading of Section 130A (1) & (4) would make it clear that if       F
the Commissioner of Customs or other party within the prescribed period
of limitation applies in the prescribed form to the High Court to direct the
Appellate Tribunal to refer to the High Court any question of law arising
from such order of the Tribunal, the High Court may do so. What is
clear on a reading of sub-section (4) is that the High Court has a discretion   G
on the facts of each case either to do so or not to do so. This becomes
absolutely plain from the first word in sub-section (4), namely, “if”. We
find nothing in the language of Section 130A which first mandatorily
obliges the High Court to call for a statement from the Tribunal before

                                                                                H
890              SUPREME COURT REPORTS                   [2020] 3 S.C.R.


A     deciding any such application. The judgment in Commissioner of
      Customs, Bangalore (supra) being incorrect is therefore overruled.
            4. The question is answered accordingly and the appeals stand
      disposed of.

B
      Devika Gujral                                      Appeals disposed of.




C




D




E




F




G




H