M/S THAKKER SHIPPING P. LTD.versusCOMMISSIONER OF CUSTOMS (GENERAL)

                        [2012] 9 S.C.R. 930


A             MIS THAKKER SHIPPING P. LTD.
                              v.
           COMMISSIONER OF CUSTOMS (GENERAL)
               (Civil Appeal No. 7696 of 2012)

                        OCTOBER 30, 2012
B
             [R.M. LODHA AND ANIL R. DAVE, JJ.]

       Customs Act, 1962 - s. 129A(5) - Condonation of delay
  under - For delay in filing an application u/s. 1290(4) -
C Permissibility - Held: Customs, Excise and Service Tax
  Appellate Tribunal is competent to invoke s. 129A (5) for
  condoning the delay - Provisions of s. 129A(1) to (7) have
  been mutatis mutandis made applicable to the applications
  u/s. 1290(4) - Legislative intent was to make entire s. 129A
D supplemental to s. 1290(4) - s. 129A(5) stands incorporated
  ins. 1290(4) by way of legal fiction - Interpretation of Statutes
  - Legislative intent - Legal Fiction.

       The question for consideration in the present appeal
  was whether it is competent for the Customs, Excise and
E Service Tax Appellate Tribunal to invoke Section 129A(5)
  of the Customs Act, 1962, where an application u/s.
  129D(4) of the Act was not made by the Commissioner
  within the prescribed time, and condone the delay in
  making such application if it is satisfied that there was
F sufficient cause for not presenting it within that period.

        Dismissing the appeal, the Court
      HELD: 1. It is competent for the Tribunal to invoke
G Section 129A(5) of Customs Act, 1962, where an
  application under Section 1290(4) has not been made
  within the prescribed time and condone the delay in
  making such application if it is satisfied that there was


H                                930
THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 931
           CUSTOMS (GENERAL)

sufficient cause for not presenting it within that period.    A
[Para 20] [943-C]

      2. Section 1290(4) makes it clear that where an
application is made by the Commissioner to the Tribunal
in pursuance of an order under sub-section (1) within a
                                                              8
prescribed period from the date of communication of that
order, such application shall be heard by the Tribunal as
if it was an appeal made against the decision or order of
the adjudicating authority and the provisions regarding
appeals under Section 129A to the Tribunal, in so far as      C
they are applicable, would be applicable to such
application. The crucial words and expressions in
Section 1290(4) are, "such application", "heard", "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            D
Tribunal in pursuance of an order under sub-section (1)
of Section 1290. The period prescribed in Section 1290
for making application does not control the expression
"such application". An application made under Section
1290(4) pursuant to the order passed under sub-sections       E
(1) or (2) shall not 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           F
subsequent expressions "heard", "as if such an
application were an appeal"' and "so far as may be"
occurring in Section 1290(4) of the Act may be rendered
ineffective. [Para 12] [939-8-G]
                                                              G
    3. The clear and unambiguous provision in Section
1290(4) that the application made therein shall be heard
by the Tribunal as if it was an appeal made against the
decision or order of the adjudicating authority and the
provisions of the Act regarding appeals, so far as may be,
                                                              H
     932      SUPREME COURT REPORTS             [2012] 9 S.C.R.

 A shall apply to such application leaves no manner of doubt
   that the provisions of Section 129A (1) to (7) have been
   mutatis mutandis made applicable, with due alteration
   wherever necessary, to the applications under Section
   1290(4). Section 129A has been incorporated in Section
 B 1290. Section 129A(5) has become integral part of
   Section 1290(4) of the Act. [Paras 12 and 13) [939-G-H;
   940-A-B-D]

          4. Parliament intended entire Section 129A, as far as
     applicable, to be supplemental to Section 1290(4) and
   C that is why it provided that the provisions relating to the
     appeals to the Tribunal shall be applicable to the
     applications made under Section 1290(4). The
     expression, "including the provisions of sub-section (4)
     of Section 129A" is by way of clarification and has been
   D so said expressly to remove any doubt about the
     applicability of the provision relating to cross objections
     to the applications made under Section 1290(4) or else
     it may be said that provisions relating to appeals to the
     Tribunal have been made applicable and not the cross
,- E objections. The use of expression "so far as may be" is
     to bring general provisions relating to the appeals to
     Tribunal into Section 1290(4). Once the provisions
     relating to the appeals to the Tribunal have been made
     applicable, Section 129A(5) stands incorporated in
   F Section 1290(4) by way of legal fiction and must be given
     effect to. Seen thus, it becomes clear that the Act has
     given express power to the Tribunal to condone delay in
     making the application under Section 1290(4) if it is
     satisfied that there was sufficient cause for not
   G presenting it within that period. [Para 14] [940-E-H; 941-
     A]
         Commissioner of Central Excise v. Azo Dye Chem
     (2000) 120 ELT201 (Tri-Delhi) - not approved.

 H         Commissioner of Customs and Central Excise v. Hongo
 THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 933
            CUSTOMS (GENERAL)

India Pvt.Ltd. and Anr. (2009) 5 SCC 791 - held inapplicable.     A

     Delhi Cloth and General Mills Co. Ltd. v. State of
Rajasthan and Ors.(1996) 2 SCC 449: 1996 (1) SCR 518;
Fairgrowth Investments Ltd. v. Custodian (2004) 11 SCC 472:
2004 (5) Suppl. SCR 505; UCOBank and Anr. v. Rajinder
                                                                  8
Lal Capoor (2008) 5 SCC 257: 2008 (5) SCR 775 - referred
to.

                      Case Law Reference:
  (2000) 120 ELT 201 (Tri-Delhi) Not approved        Para 12      c
  (2009) s sec 191                held inapplicablePara 16
  1996 (1) SCR 518                Referred to        Para 17
  2004 (5) Suppl. SCR 505         Referred to        Para 18
                                                                  D
  2008 (5) SCR 775                Referred to        Para 19

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7696 of 2012.

    From the Judgment & Order dated 13.08.2010 of the High        E
Court of Judicature at Bombay in Customs Appeal No. 8 of
2009.

    Rony 0. John, Surti Sabharwal (for Praveen Kumar) for the
Appellant.
                                                                  F
      R.P. Bhatt, K. Swami, Vikas Bansal, B. Krishna Prasad
for the Respondent.

    The Judgment of the Court was delivered by
                                                                  G
    R.M. LODHA, J. 1. Leave granted.

    2. The High Court answered in the affirmative the following
question:

    "Whether the CESTAT has discretionary power under             H
    934       SUPREME COURT REPORTS                    [2012] 9 S.C.R.


A         Section 129A (5) of the Customs Act, 1962 to condone
          the delay caused in filing the appeal under Section
          1290(3) [sic, 1290(4)] of the said Act, when there was
          sufficient cause available to appellant for not filing it within
          the prescribed period before the Appellate Authority".
B
          3. The facts leading to the present appeal are these. A
    container was intercepted by M & P Wing of Commissioner of
    Customs (Preventive), Mumbai on 11.01.2001. It was found to
    contain assorted electrical and electronic goods of foreign
    origin. The said goods were imported by Mis Qureshi
C   International and the cargo was cleared from Nhava Sheva. The
    clearance of the goods was handled by Mis Thakker Shipping
    P. Ltd., the appellant, referred to as the Custom House Agent
    ('CHA' for short). On physical verification, the value of seized
    cargo was estimated at Rs. 77,10,0001- as local market value
0   as against the declared value of Rs. 10,03,6901-. The importer
    could not be interrogated. On search of premises of CHA, the
    books relating to import export clearance were not found for
    verification. In the statement of Vijay Thakker, proprietor of the
    CHA, recorded under Section 108 of the Customs Act, 1962
E   (for short, 'the Act'), he accepted that he attended the import
    clearance work and introduced the importer to the overseas
    suppliers and bankers for financial assistance; the bill of entry
    for the clearance of subject goods had been filed without proper
    description and correct value and he failed to inform the
F   Customs Officers about the subject goods, despite having
    attended the examination of 5% goods prior to the clearance.
    Accordingly, the inquiry officer recorded his findings.

       4. Initially, the appellant's CHA licence was placed under
  suspension pending inquiry under Regulation 23 of Custom
G House Agent Licencing Regulations, 2004 but the suspension
  order was set aside by the Customs, Excise and Service Tax
  Appellate Tribunal (for short, 'Tribunal') and CHA licence was
  restored. The inquiry under Regulation 23, however, proceeded
  against the CHA on diverse charges. The Commissioner of
H Customs (General) Mumbai by his order in original dated
THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 935
    CUSTOMS (GENERAL) [R.M. LODHA, J.]

21.07.2004 dropped the proceedings under Regulation 23 by          A
rejecting the findings of the inquiry officer.

      5. The Committee of Chief Commissioners of Customs
(for short, 'the Committee') constituted under sub section (1 B)
of Section 129A of the Act called for and examined the records
                                                                   B
of the proceedings leading to order in original dated
21.07.2004 passed by the Commissioner of Customs
(General) Mumbai (for short, 'the Commissioner') for satisfying
itself as to the 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     C
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        D
proceedings against the CHA.

     6. The Commissioner, accordingly, made an application
under Section 1290(4) of the Act before the Tribunal. As the
said application could not be made within the prescribed           E
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:                               F

    "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 condoning             G
    delay of 10 days. In the case of CCEx. Mumbai vs. Azo
    Dye Chem-2000 (120) ELT 201 (Tri-LB), Larger Bench of
    the Tribunal has held that the Tribunal has no power to
    condone the delay caused in filing such appeals by the
    Department beyond the prescribed period of three               H
    936        SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A         months. Even though the said decision was in a central
          Excise case, the ratio of this decision is equally applicable
          to Customs cases since the legal provisions under both
          the enactments are similar.

          2. Accordingly, following the ratio of Azo Dye Chem
B
          (Supra), we have no option but to reject the application for
          condonation of delay. We order accordingly and
          consequently, the appeal also stands dismissed".

        7. This appeal raises the question, whether it is competent
C for the Tribunal to invoke Section 129A(5) of the Act where an
  application under Section 1290(4) has not been made by the
  Commissioner 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.
D
        8. Learned counsel for the appellant submitted that Section
  1290(4) of the Act was self contained and if the application
  contemplated therein was not made within the prescribed
  period, the Tribunal has no power or competence to condone
E the delay after expiry of the prescribed period. In support of his
  arguments he relied upon a larger Bench decision of the
  Customs, Excise and Gold (Control) Appellate Tribunal
  ('CEGA T') in Commissioner of Central Excise v. Azo Dye
  Chem 1• He also placed heavy reliance upon a three-Judge
  Bench decision of this Court in Commissioner of Customs and
F Central Excise v. Hongo India Pvt. Ltd. and Another2. Learned
  counsel for the appellant also placed reliance upon decisions
  of this Court in Delhi Cloth and General Mills Co. Ltd. v. State
  of Rajasthan and Ors. 3, Fairgrowth Investments Ltd. v.
  Custodian4 and UCO Bank and Anr. v. Rajinder Lal Capoor6.
G
    1.   (2000) 120 ELT 201 (Jri-Delhi).
    2.   c2009) 5 sec 791.
    3.   (1996) 2 sec 449.
    4.   (2004) 11 sec 472.
H 5.     c2ooa) 5 sec 257.
THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 937
    CUSTOMS (GENERAL) [R.M. LODHA, J.]

    9. On the other hand, Mr. R.P. Bhatt, learned senior                           A
counsel for the respondent, supported the view of the High
Court in passing the impugned order. He submitted that the
answer to the question under consideration was dependent on
construction of Sections 1290 and 129A of the Act.
                                                                                   B
    10. Section 1290 (omitting the parts not relevant) reads:

    "S.1290. -Power 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                       C
    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                               D
    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;
                                                                                   E

    (2) ..................................................................... ..

    (3) The Committee of Chief Commissioners of Customs
    ... shall make order under sub-section (1) .... within a                       F
    period of three months from the date of communication of
    the decision or order of the adjudicating authority;

    (4) Where in pursuance of an order under sub-section (1)
    .... Commissioner of Customs makes an application to the                       G
    Appellate Tribunal .... within three months from the date
    of communication of the order under sub-section (1) ....
    such application shall be heard by the Appellate Tribunal
    .... as if such applications were an appeal made against
    the decision or order of the adjudicating authority and the
    provisions of this Act regarding appeals, inclL•dirg H
    938        SUPREME COURT REPORTS                           [2012] 9 S.C.R.


A         provisions of sub-section (4) of Section 129A shall, so far
          as may be, apply to such application.

          (5) ..................................................................... "

          We may clarify that sub-sections (3) and (4) of Section
B         1290 have been amended from time to time. What has
          been reproduced above are the provisions existing at the
          relevant time.

          11. Section 129A (omitting the parts not relevant) reads:
c         "S.129. - Appellate Tribunal. -

          (1) ................................................................... .

          (2) ................................................................... .
D
          (3) Every appeal under this section shall be filed within
          three months from the date on which the order sought to
          be appealed against is communicated to the
          Commissioner of Customs, or as the case may be, the
          other party preferring the appeal.
E
          (4)0n receipt of notice that an appeal has been preferred
          under this section, the party against whom the appeal has
          been preferred may, notwithstanding that he may not have
          appealed against such order or any part thereof, file, within
F         forty-five days of the receipt of the notice, a memorandum
          of cross-objections verified in such manner as may be
          specified by rules made in this behalf against any part of
          the order appealed against and such memorandum shall
          be disposed of by the Appellate Tribunal as if it were an
G         appeal presented within the time specified in sub-section
          (3).

          (5) The Appellate Tribunal may admit an appeal or permit
          the filing of a memorandum of cross-objections after expiry
          of the relevant period referred to in sub-section (3) or sub-
H
THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 939
    CUSTOMS (GENERAL) [R.M. LODHA, J.]

    section (4), if it is satisfied that there was sufficient cause   A
    for not presenting it within that period".

     12. Section 1290(4) makes it clear that where an
application is made by the Commissioner to the Tribunal in
pursuance of an order under sub-section (1) within a prescribed       8
period from the date of communication of that order, such
application shall be heard by the Tribunal as if it was an appeal
made against the decision or order of the adjudicating authority
and the provisions regarding appeals under Section 129A to
the Tribunal, in so far as they are applicable, would be              C
applicable to such application. The crucial words and
expressions in Section 1290(4) are, "such application",
"heard", "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            D
Section 1290. The period prescribed in Section 1290 for
making application does not control the expression "such
application". It is difficult to understand how an application
made under Section 1290(4) pursuant to the order passed
under sub-sections ( 1) or (2) shall cease to be "such                E
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              F
application were an appeal"' and "so far as may be" occurring
in Section 1290(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          G
and unambiguous provision in Section 1290(4) that the
application made therein shall be heard by the Tribunal as if it
was an appeal made against the decision or order of the
adjudicating authority and the provisions of the Act regarding
appeals, so far as may be, shall apply to such application leaves     H
    940     SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A   no manner of doubt that the provisions of Section 129A (1) to
    (7) have been mutatis mutandis made applicable, with due
    alteration wherever necessary, to the applications under
    Section 1290(4).

       1-3. From the plain language of Section 1290(4), it is clear
8
  that Section 129A has been incorporated in Section 1290. For
  the sake of brevity, instead of repeating what has been provided
  in Section 129A as regards the appeals to the Tribunal, it has
  been provided that the applications made by the Commissioner
  under Section 1290(4) shall be heard as if they were appeals
C made against the decision or order of the adjudicating authority
  and the provisions relating to the appeals to the Tribunal shall
  be applicable in so far as they may be applicable.
  Consequentially, Section 129A(5) has become integral part of
  Section 1290(4) of the Act. In other words, if the Tribunal is
0 satisfied that there was sufficient cause for not presenting the
  application under Section 1290(4) within prescribed period, it
  may condone the delay in making such application and hear
  the same.

E       14. Parliament intended entire Section 129A, as far as
  applicable, to be supplemental to Section 1290(4) and that is
  why it provided that the provisions relating to the appeals to the
  Tribunal shall be applicable to the applications made under
  Section 1290(4). The expression, "including the provisions of
F sub-section (4) of Section 129A" is by way of clarification and
  has been so said expressly to remove any doubt about the
  applicability of the provision relating to cross objections to the
  applications made under Section 1290(4) or else it may be
  said that provisions relating to appeals to the Tribunal have
G been made applicable and not the cross objections. The use
  of expression "so far as may be" is to bring general provisions
  relating to the appeals to Tribunal into Section 1290(4). Once
  the provisions relating to the appeals to the Tribunal have been
  made applicable, Section 129A(5) stands incorporated in
H Section 1290(4) by way of legal fiction and must be given effect
THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 941
    CUSTOMS (GENERAL) [R.M. LODHA, J.]

to. Seen thus, it becomes clear that the Act has given express     A
power to the Tribunal to condone delay in making the
application under Section 1290(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
                                                                   8
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 C
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 D
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          E
     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 having a relation to the rate of duty of excise or
     to the value of goods for purposes of assessment), by
     application in the prescribed form, accompanied, where        F
     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".
                                                                   G
This Court observed that except providing a period of 180 days
for filing reference application to the High Court, there was no
other clause for condoning the delay if reference was made
beyond the said prescribed period. Sections 5 and 29(2) of the
Limitation Act were noted. This Court then held that the           H
    942      SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A . language used in Sections 35, 35-8, 35-EE, 35-G and 35-H
    makes the position clear that an appeal and reference to the
    High Court should be made within 180 days only from the date
    of communication of the decision or order and in the absence
    of any clause condoning the delay by showing sufficient cause
B after the prescribed period, there was complete exclusion of
    Section 5 of the Limitation Act. In conclusion this Court held
    that the time limit prescribed under Section 35-H(1) to make a
    reference to the High Court was absolute and unextendable by
    the Court under Section 5 of the Limitation Act. In the present
C case, as noted above, the provisions relating to the appeals
    to the Tribunal have been made applicable to an application
    made under Section 1290(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
0
    condonable by the Tribunal by virtue of sub-section (5) thereof.
    The Tribunal has been invested with the same power for
    consideration of the applications under Section 1290(4) if it is
    satisfied that there was sufficient cause for not presenting such
    application within prescribed period as the provisions relating
E to the appeals to the Tribunal have been made applicable to
   such applications. Hongo India Pvt. Ltd2 does not help the
   appellant at all.

         17. In Delhi Cloth and General Mills Co. LtcP. the concept
F   of legal fiction has been explained. This Court observed, "the
    legal consequences cannot be deemed nor, therefrom, can the
    events that should have preceded it. Facts may be deemed
    and, therefrom, the legal consequences that follow".

G        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
H
THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 943
    CUSTOMS (GENERAL) [R.M. LODHA, J.]

considered various provisions of the Limitation Act, including       A
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.
                                                                     B
     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 C
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.
                                                                   D
     21. In view of the above, the appeal must fail and it fails
and is dismissed with no order as to costs.

K.K.T.                                       Appeal Dismissed.