Introduction to appeal under Section 128 of Customs Act
The Customs Act, 1962, provides a framework for the regulation of import and export trade in India. One of the key aspects of this framework is the provision for appeals against decisions or orders passed under the Act. Section 128 of the Customs Act provides for appeals to the Commissioner (Appeals) within a prescribed time limit.
Statutory Time Limit for Appeals
As per Section 128 of the Customs Act, an appeal is to be filed within 60 days from the date of communication of such decision or order. If the appellant shows sufficient cause which prevented him from filing the appeal within the specified period of 60 days, the Commissioner (Appeals) can condone the delay of a further period of 30 days.
Limitations on Condonation of Delay
However, any delay in filing an appeal beyond the extended period of thirty days after expiry of normal period of sixty days, cannot be condoned. The Supreme Court in Singh Enterprises categorically held that any delay beyond the extended period of thirty days after expiry of normal period of sixty days, cannot be condoned since the Statute does not permit and the provisions of Section 5 of the Limitation Act would not apply.
Role of High Courts
The High Court, being a constitutional court, has the power to condone the delay in filing an appeal under exceptional circumstances. However, it’s important to note that this power is exercised sparingly and only in cases where the court is convinced that there was sufficient cause for not presenting the appeal within the prescribed time limit.
Relevant Case Laws delay appeal under Section 128 of Customs Act
Amitara Industries Ltd vs Union Of India & on 30 January, 2013
In this case, it was held that neither the Commissioner (Appeals) nor CESTAT can condone a delay in filing an appeal under section 128 of Customs Act beyond three months.
Panoli Intermediate (India) Pvt. Ltd. Petitioner(S) v. Union Of India Mar 13, 2015
In this case, three questions were formulated and referred to a larger bench:
- Whether the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor can the appeal be filed beyond the period of 90 days.
- Whether a petition under Article 226of the Constitution would not lie for the purpose of condonation of delay in filing the appeal.
- Whether a petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances:
-
- The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none.
- The authority has exercised power in excess of jurisdiction and by overstepping or crossing limits.
- The authority has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified.
- Resultantly, there is failure of justice or it has resulted into gross injustice.
The court concluded that while there are provisions for condonation of delay in filing an appeal under Section 128, these are limited to a maximum period of thirty days beyond initial sixty-day period. Neither Commissioner (Appeals) nor CESTAT can condone a delay beyond this period. However, High Courts may exercise their discretion to condone delays under exceptional circumstances.
Conclusion of appeal under Section 128 of Customs Act
In conclusion, while there are provisions for condonation of delay in filing an appeal under Section 128 of Customs Act, these are limited to a maximum period of thirty days beyond initial sixty-day period. Neither Commissioner (Appeals) nor CESTAT can condone a delay beyond this period. However, High Courts may exercise their discretion to condone delays under exceptional circumstances.
