Supreme Court of India
COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOA versus M/S ADANI EXPORTS LTD. on 11 February 2020
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Conclusion
COMMISSIONER OF CUSTOMS ANDCENTRAL EXCISE, GOA
M/S ADANI EXPORTS LTD.
(Civil Appeal No. 6021 of 2009)
FEBRUARY 11, 2020
[R. F. NARIMAN, S. RAVINDRA BHATAND V. RAMASUBRAMANIAN, JJ.]
Customs Act, 1962: s.130A (1) and (4) – High Court is notmandatorily obligated to call for a statement from the Tribunal inevery case before deciding application under s.130A – A readingof s.130A (1) and (4) makes it clear that if the Commissioner ofCustoms or other party within the prescribed period of limitationapplies in the prescribed form to the High Court to direct theAppellate Tribunal to refer to the High Court any question of lawarising from such order of the Tribunal, the High Court may do so– Thus, High Court has a discretion on the facts of each case eitherto do so or not to do so.
Disposing of the appeals, the Court
HELD: The High Court is not mandatorily required to callfor a statement from the Tribunal in every case, where a referenceis made. This is so because of the language of Sub-Section 4 whichopens with an ‘if’. A reading of Section 130A (1) & (4) wouldmake it clear that if the Commissioner of Customs or other partywithin the prescribed period of limitation applies in the prescribedform to the High Court to direct the Appellate Tribunal to referto the High Court any question of law arising from such order ofthe Tribunal, the High Court may do so. What is clear on a readingof sub-section (4) is that the High Court has a discretion on thefacts of each case either to do so or not to do so. This becomesabsolutely plain from the first word in sub-section (4), namely,“if”. There is nothing in the language of Section 130A which firstmandatorily obliges the High Court to call for a statement fromthe Tribunal before deciding any such application. [Paras 2, 3][889 E-H; 890-A]
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ACommissioner of Customs, Bangalore v. CentralManufacturing Tech. Institute 2002 (146) ELT 27 –overruled.
Case Law Reference
2002 (146) ELT 27overruledPara 3B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6021of 2009.
From the Judgment and Order dated 09.12.2003 of the High Courtof Bombay at Goa in Reference Application Under Customs Act No. 2Cof 2003.
With
Civil Appeal Nos. 6072-6073 of 2009.
K. Radhakrishnan, Tarun Gulati, Arijit Prasad, Sr. Advs., Ms. ShirinDKhajuria, 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 Counselappearing on behalf of the Revenue for sometime and after perusing thereference order to a larger Bench dated 14.03.2018, it is first necessaryto set out Section 130A(1) & (4) of the Customs Act.
F“130A. Application to High Court.- (1) The Commissioner ofCustoms or the other party may, within one hundred and eightydays of the date upon which he is served with notice of an orderunder section 129B passed before the 1[st] day of July, 2003 (notbeing an order relating, among other things, to the determinationof any question having a relation to the rate of duty of customs orGto the value of goods for purposes of assessment), by applicationin the prescribed form, accompanied, where the application is madeby the other party, by a fee of two hundred rupees, apply to theHigh Court to direct the Appellate Tribunal to refer to the HighCourt any question of law arising from such order of the Tribunal.”
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COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOAv. M/S ADANI EXPORTS LTD. [R. F. NARIMAN, J.]
(4) If, on an application made under sub-Section (1), the HighCourt directs the Appellate Tribunal to refer the question of lawraised in the application, the Appellate Tribunal shall, within onehundred and twenty days of the receipt of such direction, draw upa statement of the case and refer it to the High Court.”
2. Mr. K. Radhakrishnan referred to an order of 2 learned Judgesof this Court in Commissioner of Customs, Bangalorev. CentralManufacturing Tech. Institutereported in 2002 (146) ELT 27 whichreads as under:
“1. Leave granted. The High Court rejected an application forreference of the question of law arising from the order of CEGATand the High Court agreed with the view taken by the Tribunaland disposed of the matter stating that the question of law doesnot arise from the order of CEGAT. That was not the stage atwhich the High Court could have expressed its views on merits ofthe matter and the appropriate course for the High Court was tocall for a statement and then decide the matter in an appropriatemanner as provided under the law.
2. In that view of the matter, we set aside the order made by theHigh Court and remit the matter to the High Court for freshexamination. The appeal is allowed accordingly.”
We do not find anything in the text of Section 130A which impliesthat the High Court is mandatorily required to call for a statement fromthe Tribunal in every case, where a reference is made. We say so becauseof the language of Sub-Section 4 which opens with an ‘if’.
3. A reading of Section 130A (1) & (4) would make it clear that ifthe Commissioner of Customs or other party within the prescribed periodof limitation applies in the prescribed form to the High Court to direct theAppellate Tribunal to refer to the High Court any question of law arisingfrom such order of the Tribunal, the High Court may do so. What isclear on a reading of sub-section (4) is that the High Court has a discretionon the facts of each case either to do so or not to do so. This becomesabsolutely plain from the first word in sub-section (4), namely, “if”. Wefind nothing in the language of Section 130A which first mandatorilyobliges the High Court to call for a statement from the Tribunal before
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Adeciding any such application. The judgment in Commissioner ofCustoms, Bangalore (supra) being incorrect is therefore overruled.
4. The question is answered accordingly and the appeals standdisposed of.
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Devika Gujral
Appeals disposed of.
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