By TIOL News Service

NEW DELHI, MAY 14, 2018: THESE are Civil Appeals filed by the CCE & Customs, Goa.

A show cause notice u/s 28(1) of the Customs Act, 1962 was issued to the respondent Company proposing to recover some duty which was not paid in connection with certain transactions of import of Low Ash Metallurgical Coke claiming the benefit of certain advance licences allegedly purchased by the respondent Company.

The licences, it appeared, were originally granted in favour of some other entity and were transferred on more than one occasion. After the import was completed at some stage, the appellants (Commissioner) opined the licences were not valid licences at the point of time of the imports made by the respondents. Therefore, the notice under Section 28(1).

This SCN was issued by the appellants beyond a period of six months reckoned from the relevant date.

The CESTAT, before whom eventually the dispute landed opined that the Department was not justified in invoking the extended period of limitation.

Aggrieved, the Revenue had sought a reference under Section 130A of the Customs Act (as existing during the material time and which stood subsequently repealed by Act 49 of 2005).

By the judgment under appeal, the High Court dismissed the application.

Counsel for Revenue submitted that when such an application under Section 130A seeking a reference is made, the High Court is mandatorily obliged to call for a statement from the Tribunal before deciding the application which the High Court did not and proceeded to decide the application and, therefore, the proceedings are unsustainable in law.

Reliance is placed on the decision of the apex court in the case of Commissioner Of Customs, Bangalore v. Central Manufacturing Tech. Institute [5774 of 2002 dated 09.09.2002] and it reads -

"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."

The Supreme Court, therefore, observed –

"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 SubSection 4 which opens with an 'if'. However, learned counsel for the appellants very vehemently argued that the above extracted order enunciated the legal position regarding the interpretation of Section 130A which is required to be followed. We find it difficult to accept the submission. However, having regard to the fact that it is a question of law, we deem it appropriate that the matters be decided by a larger Bench of appropriate strength…"

The Registry was directed to place the Order before the Chief Justice of India for appropriate further course of action.

(See 2018-TIOL-182-SC-CUS)