IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 OP.No. 5436 of 2000(V) ---------------------- PETITIONER: ------------ JOSEPH KURIAN, PROPRIETOR, PREMIER RUBBER FACTORY, PALAMATTOM, KOTHAMANGALAM. BY ADV. SMT.T.D.RAJALAKSHMI SRI.E.R.VENKATESWARAN RESPONDENTS: ------------- 1. THE COMMISSSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDINGS, IS PRESS ROAD, COCHIN-682 018. 2. CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, SHASTRI BHAVAN ANNEXE BUILDING, FIRST FLOOR, 26 HADDOWS ROAD, CHENNAI 600 006. BY ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC FOR R1,R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.9136/2000 IN OP NO.5436/2000 DISMISSED: SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) 3.1.2008 SD/-(T.R.RAMACHANDRAN NAIR, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF JUDGMENT IN WA NO.1201/99 DT.18.6.99. P2: TRUE COPY OF APPLICATION FILED BEFORE R1 DT.14.7.99. P3: TRUE COPY OF APPLICATION FILED BEFORE R1 DT.14.7.99 FOR DELAY CONDONATION. P4: TRUE COPY OF ORDER PASSED BY R1 DT.23.12.99 ALONG WITH COVERING LETTER DT.4.1.2000. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR & T.R.RAMACHANDRAN NAIR, JJ. .................................................................... O.P. No.5436 of 2000 .................................................................... Dated this the 3rd day of January, 2008. JUDGMENT C.N.Ramachandran Nair, J. The petitioner is challenging Ext.P4 order whereunder the Tribunal has rejected reference application on account of delay. Even though the Tribunal rightly held that they have no power to condone delay beyond 30 days, we find that in Ext.P1 judgment a Division Bench of this court observed that the Tribunal should exclude the period during which proceedings were pending before this court, while considering limitation. The petitioner had in fact challenged the Tribunal's order in O.P. and being unsuccessful, in writ appeal. In Writ Appeal this court felt that instead of challenging the matter in writ proceeding, a reference should be made under the statute and there is a case for condonation of delay on account of pendency of the matter in this court. Unfortunately the Tribunal did not take the Division Bench judgment in the correct perspective. Since first O.P. was filed within the period of limitation for reference, we vacate Ext.P4 order and direct the Customs, Excise and Gold (Control) Appellate Tribunal, Bangalore Bench to consider the reference application and pass 2 orders thereon treating the application for reference as one filed in time. The Tribunal is directed to pass orders within a period of three months from the date of receipt of copy of this judgment. C.N.RAMACHANDRAN NAIR Judge T.R.RAMACHANDRAN NAIR Judge pms