Commissioner of Customs and Central Excise, Goa v. M/S Adani Exports Ltd.
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 1 st 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.”
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(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 Tribuna l
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 f resh
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 i s
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 mandatori ly
obliges the High Court to call for a statement from the Tribunal before
COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOA
v. M/S ADANI EXPORTS LTD. [R. F. NARIMAN, J.]
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.
Devika Gujral Appeals disposed of.