ORDER
Harish Chander, President
1. M/s. Surekha Coated Tubes and Sheets Ltd. have filed a Reference application being aggrieved from an order passed by the Tribunal. The said application was presented in the Registry on the 28th September, 1994. In Column No. 6 of the Reference application, the date of communication has been mentioned as 17-1-1994. Thus, in terms of provisions of Sub-section (1) of Section 130 of Customs Act, 1962, a Reference application has to be filed within 60 days from the date of receipt of the order. Thus, there is a delay of 194 days. Applicant has also filed an application for condonation of delay duly supported with an affidavit. Shri G.L. Rawal, Advocate with Shri A. Samad, Advocate has appeared on behalf of the appellant. Shri Rawal pleaded that first the application for condonation of delay in filing the Reference application may be taken up. Shri K.K. Jha, ld. SDR has got no objection. Accordingly, we proceeded to hear the application for condonation of delay. Shri Rawal pleaded that the appellant is prevented by sufficient cause in the late filing of the application for reference. He pleaded that bonafidely the appellant had challenged the order passed by the Tribunal before the Delhi High Court and the Hon’ble Delhi High Court was pleased to pass an order for approaching the Tribunal for the disposal of the Reference application and also a direction was given to file an application for condonation of delay. He pleaded that a copy of the order passed by the Hon’ble High Court appears at page, 34-35 of the paper book. He pleaded that since the present Reference application is in view of the directions of the Hon’ble Delhi High Court and as such the Tribunal should consider the limitation liberally and further on the merits, bona fides of the appellant cannot be doubted. In support of his argument he cited the decision in the case of Metro Exporters Ltd. v. CEGAT reported in 1991 (51) E.L.T. 316. He drew the attention of the Bench to para 5 of the said judgment where the Hon’ble Calcutta High Court had held that there is no limitation for filing of the Reference application. He pleaded that the same ratio should be applied in this case and the delay may be condoned. He also pleaded that where there are directions of the High Court, the Tribunal should follow the directions and accordingly, condone the delay. In support of his argument he cited the decision of the Hon’ble Supreme Court in the case of Dynamic Hydraulics Ltd. v. CC reported in 1992 (58) E.L.T. 553 (SC). Shri Rawal also cited another decision in the case of Hellenic Lines Ltd. and Anr. v. UOI reported in 1981 (8) E.L.T. 918 (Bom.) where the Hon’ble Bombay High Court had held that where there is basic infirmity in the order on the issue of jurisdiction, the point of limitation can be raised at any time. The point of limitation need not be looked into and normally limitation of three years will apply. He pleaded for condonation of delay. He pleaded that the power for condonation of delay by the Tribunal is to be exercised in pursuance of the directions of the Delhi High Court dated 14-9-1994 and as such the delay may be condoned.
2. Shri K.K. Jha, ld. SDR who has appeared on behalf of the respondent pleaded that the Tribunal does not have power to condone the delay beyond 30 days. In support of his argument he referred to the Proviso to Sub-section (1) of Section 130 of the Customs Act, 1962. He pleaded that in the case of Metro Exports cited by the ld. Advocate, the decision was in favour of the Revenue and he pleaded for rejection of the application for condonation of delay without going into the merits of the reference application. Shri Rawal in reply again cited another decision in the case of Jain Exports (P) Ltd. v. CC & CE Ahmedabad reported in 1988 (33) E.L.T. 199 (Tribunal) where there are directions by the High Court that if an appeal is filed in view of the directions of the High Court after the expiry of the limitation, there is no necessity of filing an application for condonation of delay. He again pleaded for condonation of delay. Shri Rawal also pleaded that the Tribunal should look into the merits as set out in the application for condonation of delay.
3. We have heard both the sides and have gone through the facts and circumstances of the case. It is an admitted position that the impugned order was received on 17-1-1994 and as such the last date for filing of the reference application was 18-3-1994 whereas the reference application was filed on 28-9-1994. Thus, there is a delay of 194 days. In the month of May, 1994 the appellant had filed a writ petition before the Hon’ble Delhi High Court challenging the order passed by the Tribunal and the Hon’ble Delhi High Court vide Order dated 14-9-1994 in Civil Writ Petition No. 3859/94 had passed the following order :-
“This petition has been filed against the order dated 22nd November, 1993 of the Customs, Excise and Gold (Control) Appellate Tribunal passed under Section 125-B of the Customs Act, 1962. Mr. Rawal, counsel for the petitioners has raised various points. He states that the order dated 16-4-1990 passed by the Collector of Customs against which the appeal was filed before the Appellate Tribunal had no jurisdiction in the matter. This argument is based on the fact that though the order of the Collector is dated 16-4-1990, notification conferring jurisdiction on him dated 6-4-1990 was made available to public sometime in June, 1990. He says that the jurisdiction of the Collector would be deemed to have been conferred on him when the notification came to his knowledge. He also says that hearing in this case took place in February, 1990 when in any case there was no jurisdiction with the Collector.
The next point raised is that the import was valid and was in accordance with the advance licence and that there was no violation of any law and as such customs authorities had no jurisdiction in the matter.
Mr. Rawal raised various other points as well but we are of the opinion that the impugned order of the Appellate Tribunal would raise various questions of law as per submissions made and reference could be made to this court under Section 130 of the Act by the Appellate Tribunal. At this stage Mr. Rawal says that the time for moving the Tribunal for reference on the question of law under Section 130 of the Customs Act has since expired. We find this petition was filed sometime in May, 1994. Mr. Rawal may move the Tribunal with an application for condonation of delay in filing the application under Section 130 of the Act as provided therein.
Since questions of law arose on which reference could have been sought, we do not wish to interfere. Dismissed.”
A perusal of the order passed by the Hon’ble Delhi High Court shows that Shri Rawal, the ld. Advocate has made a pleading before the Hon’ble Delhi High Court as to the limitation for filing the reference application under Section 130 of the Customs Act which had already expired. The Hon’ble High Court had observed that as the petition was filed sometime in May, 1994, it was left to the applicant to file an application for condonation of delay in terms of Proviso to Section 130 of the Customs Act, 1962 and the appellant in pursuance of the order passed by the Hon’ble Delhi High Court has filed an application for condonation of delay. For proper appreciation of the legal position, Provisions of Section 130 (1) of the Customs Act, 1962 are reproduced below:
“130(1). The Collector of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 129B (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 such form as may be specified by rules made in this behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court.”
Para materia similar are the provisions under the Income Tax Act, 1961. Section 256(1) of the Income Tax Act, 1961 is reproduced below:-
256(1). The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under Section 254, by application in the prescribed form, accompanied, where the application is made by the assessee, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court.”
A perusal of both the Sections under the Customs Act as well as under the Income Tax Act shows that they are similar. Shri Rawal had placed heavy reliance on the judgment of the Hon’ble High Court in the case of Metro Exports Ltd. v. CEGAT reported in 1991 (51) E.L.T. 316. Para No. 5 from the said judgment is reporduced below:-
* * * * * *
A perusal of above shows that “There is no outer limit for filing of an application for condonation of delay. The distinction is subtle. There is nothing in the Customs Act that in case there is delay in filing the Reference Application, the same has to be filed alongwith an application for condonation of delay.” In the matter before us, the appellant has filed the application for condonation of delay duly supported with an affidavit alongwith the Reference Application and as such the judgment cited by the ld. Advocate does not help him. This Tribunal is a creature of statute. Hon’ble Supreme Court in the case of Miles India Ltd. v. Asstt. Collector of Customs reported in 1987 (30) E.L.T. 641 (SC) has held as under :-
“After the matter was heard for some time and it was indicated that the Customs authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor under Section 27(1) of the Customs Act, 1962, ld. counsel for the appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the CEGAT suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised. The appeal is accordingly dismissed as withdrawn.”
Hon’ble Supreme Court in the case of CCE v. Doaba Sugar Mills reported in 1988 (37) E.L.T. 478 (SC) has held as under :-
“When the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within the four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the deptt. to initiate proceedings in the Civil Court for recovery of the amount due to the deptt. in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund.”
Hon’ble Madras High Court in the case of K. Muthuswamy Pillai v. Income Tax Appellate Tribunal reported in 174 ITR 636 had held as under:
“In order to appreciate this controversy, let me extract Section 256(1) of the Act, which is challenged before me. It reads as under :-
“Statement of case to the High Court. – (1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under Section 254, by application in the prescribed form, accompanied, where the application is made by the assessee, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such appli-cation, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days.”
From a reading of the above, it will be clear that within 60 days of the service of notice of an order under Section 254, a reference will have to be asked for by the assessee or the Commissioner. However, where there is a delay for which sufficient cause is shown, the delay could be condoned for a period of 30 days only. It is well-settled that the law of limitation is not one of substance but one of procedure. The object of prescribing limitation is put an end to litigation, or to state it in other words, the litigation may attain finality. No person has got a vested right as to limitation. It may vary from case to case and Act to Act. What came to be laid down in Rethinasamy v. Komalavalli 1982 (2) MLJ 406 was a general statement of law that unless there is a special exclusion of the Limitation Act, section 5 thereof will continue to have its operation. But, that is entirely different from the question which I am called upon to decide. The Act has prescribed the limitation. Parliament has chosen to lay down sixty days as the period of limitation. The power of condonation is only 30 days. Beyond that, there is absolutely no power for the Tribunal to condone. Be it remembered in this connection that the authorities created under this Act are functionaries under the Act and they derive power under this Act and, therefore, unless and until such a power is expressely found anywhere, it cannot be done at all, they being creatures of the statute. In this connection, I may usefully refer to the decision reported in CST v. Parson Tools and Plants – 1975 (4) SCC 22 : 1975 (35) STC 413, 420, wherein the Supreme Court has observed as follows :-
“Thus, the principle that emerges is that if the Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides a clear terms that such period, on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the Tribunal concerned has no jurisdiction to treat as within limitation, an application filed before it beyond such maximum time limit specified in the statute by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act.
We have said enough and we may say it again that where the Legilsa-ture clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is hot congenial to or consistent with such expressed intent of the law giver; more so if the statute is a taxing statute. We will close the discussion by recalling what Lord Hailsham has said recently in regard to importation of the principles of natural justice into a statute, which is a clear and complete code by itself:
It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than what a statute accords him. Still less is it the function of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment’.”
Therefore, where the will of Parliament has been so expressed, the petitioner cannot say that a longer period of limitation must be afforded to him. Law helps those who are vigilant. The petitioner having been a contributory to his own laches, will have to take the blame upon himself. There are no merits in either of these writ petitions. They are dismissed. However, there will be no order as to costs.”
In view of the above discussion, we are of the view that this Tribunal being a creature of statute under Customs Act, 1962 does not have any power to condone the delay beyond thirty days and in the present matter there is a delay of 194 days. We have duly looked into the fact that the writ petition was filed in May, 1994 and the same was decided by the Hon’ble Delhi High Court on 14-9-1994. The writ petition even before the Hon’ble High Court was filed after the expiry of the limitation for filing a Reference application. Undoubtedly there is no limitation for filing the writ petition as held by the Hon’ble Allahabad High Court in the case of State of Uttar Pradesh v. Bahadursingh reported in 1983 (3) ECR 1556 D(SC). We have duly looked into the other judgments cited by ld. Advocate. In this case Hon’ble Delhi High Court has not condoned any delay but has left it to the discretion of the Tribunal. We do not have any discretion to condone the delay. Accordingly the application for condonation of delay is dismissed.
4. Since we have dismissed the application for condonation of delay in filing Reference application, the Reference application is also dismissed being hit by limitation and we are not going into the merits of the same including the questions of law proposed by the appellants in the Reference application.
5. In the result, the application for condonation of delay as well as Reference application are rejected.
6. Let this order be sent for publication.