IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL (LODGING) NO.26 OF 2008 WITH NOTICE OF MOTION NO.1758 OF 2008 The Commissioner of Customs (Imports), New Customs House, Ballard Estate, Mumbai 400 038. .. Appellant versus M/s. Asia Pacific Marbles Pvt.Ltd. Airport Side Service Road, Near Laxmi Narayan Temple, W.E. Highway, Vile Parle (E), Mumbai. .. Respondent. ALONGWITH CUSTOMS APPEAL (LODGING) NO.49 OF 2008 WITH NOTICE OF MOTION NO.1749 OF 2008 The Commissioner of Customs (Imports), New Customs House, Ballard Estate, Mumbai 400 038. .. Appellant versus M/s. Gamco International, Quarry Road, Pathanwadi, Malad (E), Mumbai 400 097. .. Respondent. 1 AND CUSTOMS APPEAL (LODGING) NO.48 OF 2008 WITH NOTICE OF MOTION NO.1760 OF 2008 The Commissioner of Customs (Imports), New Customs House, Ballard Estate, Mumbai 400 038. .. Appellant versus M/s. Stonneman Marbles Inds. Plot No.3, INS No.263/3/2,, Post Box No.32, Village Sayli Silvassa. .. Respondent. AND CUSTOMS APPEAL (LODGING) NO.52 OF 2006 WITH NOTICE OF MOTION NO.2085 OF 2006 The Commissioner, JNCH, JNPT, Nhava Sheva, Dist. Raigad. .. Appellant versus Sophisticated Marble & Granite Industries, Plot No.17, Panchal Udyog Nagar, Bhimpore, Daman, DAMAN-396210 .. Respondent. AND CUSTOMS APPEAL (LODGING) NO.28 OF 2008 2 WITH NOTICE OF MOTION NO.1759 OF 2008 The Commissioner of Customs (Imports), New Customs House, Ballard Estate, Mumbai 400 038. .. Appellant versus M/s. Classic Marble, 15,Bhandup Village Road, 16,Next to CEAT Tyre, Subhash Nagar, Bhandup (W), Mumbai-400 078. .. Respondent. AND CUSTOMS APPEAL (LODGING) NO.13 OF 2005 WITH NOTICE OF MOTION NO.595 OF 2005 The Commissioner of Customs (Imports), Mumbai .. Appellant versus Mukesh Marbles & Minerals Ltd. Shop No.7, New Shiv Co-op. Hsg. Society Ltd. Sector 8, Khanda Colony, New Panvel. .. Respondent. AND CUSTOMS APPEAL (LODGING) NO.41 OF 2006 3 WITH NOTICE OF MOTION NO.1719 OF 2006 The Commissioner of Customs Chatrapati Shivaji International Airport Sahar, Mumbai .. Appellant versus M/s. Marsil Export, 2/02, Tardeo A/C Market, Tardeo, Mumbai-400 034. .. Respondent. AND CUSTOMS APPEAL (LODGING) NO.101 OF 2007 WITH NOTICE OF MOTION NO.4239 OF 2007 The Commissioner of Customs (Imports), New Customs House, Ballard Estate, Mumbai 400 038. .. Appellant versus M/s. Heritage Marbles Pvt.Ltd. 4-5-6, Mehta Mahal, Dada Saheb Phalke Road, Dadar (E), Mumbai. .. Respondent. ALONGWITH CUSTOMS APPEAL (LODGING) NO.05 OF 2008 WITH 4 NOTICE OF MOTION NO.497 OF 2007 1. M/s. Sitara Shipping Ltd., A Limited Copmpany duly registered under Companies Act 1962, having its address at Esplanade School Building, 3rd Floor, Room No.2,3 and 4, 160, D.N. Road, Fort, Mumbai-400 001. 2. Capatain S.S. Sahi, Managing Director of Appellant No.1, having his address at Esplanade School Building, 3rd Floor, Room No.2,3 and 4, 160, D.N. Road, Fort, Mumbai-400 001. .. Appellants versus 1. Union of India through the Joint Secretary and Legal Advisor, Ministry of Law & Justice, Aayakar Bhawan, M.K. Road, Mumbai-400 020. 2. Commissioner of Customs (General) New Customs Hiouse, 2nd Floor, Ballard Estate, Mumbai-400 001. .. Respondent. Ms. S.V. Bharucha with Mr. P.S. Jetley i/by Dr. T.C. Kaushik for the appellant-department. Mr. M.S. Murthy for respondents in Customs Appeal (L) No.52 of 2006. CORAM : SWATANTER KUMAR, C.J. & A.P. DESHPANDE, J. 5 Date of Reserving the Judgement : 5 th August, 2008 Date of Pronouncing the Judgment : 29 th August, 2008 JUDGMENT (Per Swatanter Kumar, C.J.) 1. This common order shall dispose of the above nine appeals filed by the appellants under section 130 of the Customs Act, 1962. All these nine appeals are barred by time as they have been filed beyond the period of limitation stated in section 130(2)(a) of the Customs Act, 1962. Thus, all these appeals are accompanied by Notices of Motion taken out by the applicants for condoning the delay varying from 1 day to 138 days delay in filing these appeals. The reasons given for condonation of delay in the applications is common. Of course, varying on the period of delay and different steps taken by the department in preparation and filing of these appeals. The basic question of law that arises for consideration in these Notices of Motion is whether this court has power to consider and allow the Notices of Motions for condonation of delay and hear the appeals on merits? To answer this question of law, reference to detail facts of each case would not be necessary, suffice it to notice the facts of one out of all these appeals. 6 2. In the case of Commissioner of Customs (Imports) vs. M/s. Asia Pacific Marbles Pvt.Ltd., Customs Appeal (Lodging) No.26 of 2008, where there is delay of 198 days in filing the appeal. We had heard the learned counsel appearing for the applicants and the non- applicants in all these matters. In this case, vide order dated 15th December, 2006, the Customs, Excise and Service Tax Appellate Tribunal, West Zone, Mumbai Bench had dismissed the appeals filed by the revenue as not maintainable and resultantly, had declined to interfere with the order passed by the Commissioner dated 21.10.2004 on the ground that vide order dated 20th September, 2005, the connected appeals filed by the Assessee had already been remanded. Vide order dated 4th July, 2005, the impugned orders were set aside and the matters were remanded to the concerned authority while the appeals by the department were filed thereafter. The present appeal has been prefered against that order but as already noticed, the appeal is barred by time for which Notice of Motion No.1758 of 2008 has been taken out praying for condonation of 198 days delay in filing the appeal. 7 3. At the very outset, an objection was taken that in view of the judgment of the Supreme Court in the case of Commissioner of Customs, Central Excise, Mumbai vs. Punjab Fibres Ltd., 2008(223) E.L.T. 337 (S.C.), this court has no power to condone the delay and as such, the Notices of Motion as well as appeals are not maintainable. 4. Before we proceed to deliberate on the legal issues arising in the present case, it is necessary to note that Section 35G of the Act as well as Section 130 of the Income Tax Act, 1962, came to be repealed by the National Tax Tribunal Act, 2005 (49 of 2005) with effect from 28th December 2005. Section 15 of the National Tax Tribunal Act, 2005 (hereinafter referred to as the “2005 Act”), provided for appeals from the orders passed by the Appellate Tribunal under both these Acts. Under Section 15, an appeal would lie to the National Tax Tribunal that too where the Tribunal is satisfied that the case involves a substantial question of law within the period of limitation specified under that provision. Appeal from the order of the National Tribunal would lie to the Supreme Court in terms of Section 24 of the 2005 Act. Section 23 of the 2005 Act further postulates that 8 the cases pending before the High Court on and from such date as the Central Government may by notification specify, all matters and proceedings including appeals and references under the direct taxes and indirect taxes pending before any High Court immediately before that date shall stand transferred to the National Tax Tribunal on and from such date as the Central Government may notify. The High Court then would transfer the records pertaining to such matters or proceedings to the National Tax Tribunal. It is commonly conceded before us that the Central Government has not issued any Notification fixing the date as contemplated under Section 23(1) of the 2005 Act. It has also been brought to our notice that various provisions of the 2005 Act were challenged before the Supreme Court being unconstitutional and ultra vires on various grounds and the said Special Leave Petitions are pending for regular hearing before the Supreme Court of India and even certain interim orders were passed by the Supreme Court including the order dated 9th January 2007. 5. It also needs to be noticed that the constitutional and validity of various provisions of the National Tax Tribunal Act, 2005 were also challenged before this Court in the case of P.C. Joshi vs. Union of 9 India, (2006) 282 ITR 39. This Writ Petition had been filed by an Advocate who is a Senior Tax Practitioner. The Court while adjourning the matter for directions, passed the following interim order :- “.... In the meanwhile, there will be an ad interim order restraining respondents Nos. 1 to 3 from constituting the National Tax Tribunal and transferring the matters pending in this court to the said Tribunal.” Section 130 of the Customs Act, 1962 reads as under: "130. Appeal to High Court.- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st 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), if the High Court is satisfied that the case involves a substantial question of law. (2) Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be- (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the commissiioner of Customs or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; 10 (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decisiion is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision ion such questiion of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the 11 High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisiions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." 6. This section is identical to section 35G of the Central Excise Act, 1944. By the judgment of the same date, we have disposed of seven appeals under the Central Excise Act, 1944 which also were barred by time in the case of The Commissioner of Central Excise, Pune-II v. M/s. Shurti Colorants Ltd. (Central Excise Appeal(L) No. 114 of 2008). 7. Upon interpretation of the provisions of section 35G which are not only para materia but identical to section 130 of the Customs Act, 1962. While referring to the various principles of law and judgments of the High Court and the Supreme Court at some length, we had taken a view that this court has no power to condone the delay under section 35G of the Central excist Act, 1944. 12 8. For the reasons stated in the case of The Commissioner of Central Excise, Pune-II v. M/s. Shurti Colorants Ltd., (Central Excise Appeal(L) No. 114 of 2008) and by following those principles, we have no hesitation in holding that all the Notices of Motion taken out in all these appeals for condonation of delay are not maintainable before this court as this court has no jurisdiction to condone the delay. All the Notices of Motion for condonation of delay are consequently dismissed and the appeals, obviously, do not survive for consideration. All the appeals are disposed of, however, with no order as to costs. CHIEF JUSTICE A.P. DESHPANDE, J. 13