COLLECTOR OF CUSTOMS through Additional Collector of Customs VS SHAHDEV VANKWANI, 2016 PTD-KARACHI-HIGH-COURT-SINDH 55 (2015)

Customs Act (IV of 1969)---

----S. 196---Limitation Act (IX of 1908), S. 5---Reference to High Court---Condonation of delay---Seeking of legal advice by authorities---Reference filed by authorities was barred by 51 days---Plea raised by authorities was that after getting certified copy of order passed by Customs Appellate Tribunal, the same was sent to seek legal advice whereafter fresh copy of order was obtained and reference was filed beyond the period of ninety days---Validity---Reason for seeking condonation of delay, besides being frivolous, could not otherwise be accepted---On expiry of period of limitation provided for filing reference or appeal etc. created a vested right in favour of succeeding party and unless some reasonable explanation was given, explaining delay of each and every day, condonation under such circumstances could not be allowed---Authorities failed to explain reasonably the delay caused in filing of reference---Reference was dismissed in circumstances.

Kashif Nazeer for Applicant.

Nemo for Respondent.

Date of hearing: 15th May, 2015.

ORDER

AQEEL AHMED ABBASI, J.---The above reference applications have been filed by the Collector of Customs against impugned orders both dated 07.11.2012 in Customs Appeals Nos.K-744 and 745 of 2011, whereby, both the appeals filed by the applicant department in respect of respondent on identical subject controversy were dismissed by the Customs Appellate Tribunal and the Order-in-Appeals Nos.5321 to 5322 of 2011 dated 25.05.2011, passed in favour of the respondent, was upheld. Along with both the above reference applications, the applicant department has filed application for condonation of delay under Section 5 of the Limitation Act, 1908, read with Section 196(8) of the Customs Act, 1969, as both the instant reference applications have admittedly been filed after expiry of limitation of 90 days and are time barred by 51 days.

2. Learned counsel for the applicant was directed to satisfy this Court as to maintainability of instant reference applications which have been admittedly filed beyond the period of limitation as provided under Section 196 (1) of the Customs Act, 1969, in response to such query, the learned counsel for the applicant has read out the contents of condonation application and submits that on account of some misunderstanding, the period of limitation could not be calculated properly, therefore, instant reference applications have been filed after expiry of statutory period of 90 days. It has been prayed that since the applicant has a arguable case on merits, therefore, the delay in filing reference applications may be condoned.

3. We have heard the learned counsel for the applicant, perused the record and have also gone through the contents of application filed for condonation of delay. From perusal of the record, it appears that impugned order was passed by the Customs Appellate Tribunal in the aforesaid appeals on 07.11.2012, whereas, the certified copy was issued and delivered to the concerned Collectorate on 15.11.2012 in terms of Section 194-B(3) of the Customs Act, 1969 vide receipt dated 21.11.2012, whereas, instant reference applications have been filed on 06.04.2013, after expiry of statutory period of 90 days and admittedly, there is a delay of about 51 days in filing the above reference applications before this Court. The reason which has been given in the listed application seeking condonation of delay is that the impugned orders passed by the Customs Appellate Tribunal in the above reference applications were sent to the Legal Wing of the Customs Department on 08.01.2013, whereafter, another application for issuance of fresh certified copy was filed on 01.04.2013, which was supplied on the same date and thereafter, on 06.04.2013, instant reference applications have been filed before this Court. No other explanation whatsoever has been given, which could possibly justify delay in filing instant reference applications within the stipulated period of limitation as provided under subsection (1) of Section 196 of the Customs Act, 1969, whereas, whatever has been stated by the applicant in the listed application for seeking condonation, not only reflects upon total ignorance of legal provisions relating to period of limitation provided under Section 196 (1) of the Customs Act, 1969 but also the casual attitude of the departmental authorities towards Court matters. Moreover, such explanation on the part of a Law Officer of the Customs Department cannot otherwise be accepted or considered as a plausible explanation, as the Customs Department is confronted with such situation of calculating the period of limitation in every case passed by the Customs Appellate Tribunal against Customs Department, which are normally assailed by filing reference applications before this Court within the statutory period of limitation i.e. Ninety days. Accordingly, the reason as stated above for seeking condonation of delay, besides being frivolous, cannot otherwise be accepted. We may observe that on expiry of period of limitation provided for filing reference or appeal etc. creates a vested right in favour of succeeding party and unless some reasonable explanation is given, explaining the delay of each and every day, condonation under such circumstances cannot be allowed. Accordingly, we are of the opinion that the admitted delay in filing both instant reference applications has not been explained reasonably, therefore, reference applications are dismissed in limine for being time barred, along with listed applications.

MH/C-11/SindhReference dismissed.