COMMNR. OF CUSTOMS AND CENTRAL EXCISE,GOA Vs M/S ADANI EXPORTS LTD. THROUGH ITS MANAGER
Bench: HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN, HON'BLE MR. JUSTICE S. RAVINDRA BHAT, HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN
Judgment by: HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
Case number: C.A. No.-006021-006021 / 2009
Diary number: 10589 / 2004
Advocates: B. KRISHNA PRASAD Vs EJAZ MAQBOOL
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6021 OF 2009
COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOA Appellant(s)
M/S ADANI EXPORTS LTD. Respondent(s)
C.A. Nos. 6072-6073/2009
J U D G M E N T
R.F. Nariman, J.
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.
“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 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.”
(4) If, on an application made under sub-Section (1), the High 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 of this Court in Commissioner of Customs, Bangalore
v. 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 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 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.”
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 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 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 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.
(ROHINTON FALI NARIMAN)
.......................... J. (S. RAVINDRA BHAT)
.......................... J. (V. RAMASUBRAMANIAN)
New Delhi; February 11, 2020.