A division bench of the Bombay High Court in M/s Allied Fibers Ltd v. Commissioner of Customs & Anr, observed that there is no provision for condonation of delay in filing rectification application under the Customs Act.
\However, the bench of Justices Anoop V Mohta and Anuja Prabhu Dessai interpreted the provisions of s. 129B of the Customs Act in favour of the assesse in the absence of a provision for condonation of delay and directed the Appellate Tribunal to consider the application within six months.
Appellant, in the instant case, filed a rectification application before the CESTAT under section 129B of the Customs Act after five months from the receipt of the order. However, the Tribunal dismissed the application on ground that the same was filed beyond the time limit prescribed under the law.
The bench noted that as per section 129B(2) of the Customs Act, the Tribunal suo moto need to rectify the mistake, if any, within six months from the date of the order. In the absence of such an action, the appellants themselves proceeded with the application. “The Tribunal, therefore, was required to consider and decide the merits of the matter within six months from the date of receipt of such Application. This is for simple reason that the Appellant and/or the party would not be in a position to apply for rectification unless and until the actual order is seen and/or verified.”
Analyzing the relevant provisions of the Act, the bench noted that there is no power and/or remedy available and/or no provision for condonation of delay in filing such Application for rectification. “In the absence of any such provision, we are of the view that the second part of the Section need to be read in the interest of the Appellant. The Application so filed after receipt of the order serve the purpose and object of the Application for rectification. The Tribunal, suo motu, even as per proviso to Section may correct the mistake within six months. But, if other party to appeal required correction, then second part of the Section is available to the Appellant/party. In such case, the strict interpretation of appeal within six month from the date of order referring to first part of the Section is unacceptable. Any application for correction filed by the appellant, other party, before the Tribunal, is required to be filed within six months from the receipt of the copy of the order, such application may not be dismissed, as not filed, within six months from the date of order.”
Remitting the matter back to the files of the Tribunal, the bench observed that the provisions of Limitation Act must be read with the provisions of the Act as both are relating to procedural aspects of filing such an appeal/application. “As there is no specific provision to deal with the Limitation aspect from the receipt of the order, we are of the view that a case is made out by the Appellant even to condone the delay, if any. The period of limitation may be different under two different circumstances. Therefore, the Application so filed under the same provision from the receipt of order is within limitation. Such application cannot be liable to be dismissed as sought to be contended by the Department.”
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