M/S THAKKER SHIPPING P. LTD. versus COMMISSIONER OF CUSTOMS (GENERAL)

Citation: [2012] 9 S.C.R. 930 · Decided: 30-10-2012 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2012] 9 S.C.R. 930 
MIS THAKKER SHIPPING P. LTD. 
v. 
COMMISSIONER OF CUSTOMS (GENERAL) 
(Civil Appeal No. 7696 of 2012) 
OCTOBER 30, 2012 
[R.M. LODHA AND ANIL R. DAVE, JJ.] 
Customs Act, 1962 - s. 129A(5) - Condonation of delay 
under - For delay in filing an application u/s. 1290(4) -
C Permissibility - Held: Customs, Excise and Service Tax 
Appellate Tribunal is competent to invoke s. 129A (5) for 
condoning the delay - Provisions of s. 129A(1) to (7) have 
been mutatis mutandis made applicable to the applications 
u/s. 1290(4) - Legislative intent was to make entire s. 129A 
D supplemental to s. 1290(4) - s. 129A(5) stands incorporated 
ins. 1290(4) by way of legal fiction - Interpretation of Statutes 
- Legislative intent - Legal Fiction. 
The question for consideration in the present appeal 
was whether it is competent for the Customs, Excise and 
E Service Tax Appellate Tribunal to invoke Section 129A(5) 
of the Customs Act, 1962, where an application u/s. 
129D(4) of the Act was not made by the Commissioner 
within the prescribed time, and condone the delay in 
making such application if it is satisfied that there was 
F sufficient cause for not presenting it within that period. 
Dismissing the appeal, the Court 
HELD: 1. It is competent for the Tribunal to invoke 
G Section 129A(5) of Customs Act, 1962, where an 
application under Section 1290(4) has not been made 
within the prescribed time and condone the delay in 
making such application if it is satisfied that there was 
H 
930 
THAKKER SHIPPING P. LTD. v. COMMISSIONER OF 931 
CUSTOMS (GENERAL) 
sufficient cause for not presenting it within that period. 
A 
[Para 20] [943-C] 
2. Section 1290(4) makes it clear that where an 
application is made by the Commissioner to the Tribunal 
in pursuance of an order under sub-section (1) within a 
8 
prescribed period from the date of communication of that 
order, such application shall be heard by the Tribunal as 
if it was an appeal made against the decision or order of 
the adjudicating authority and the provisions regarding 
appeals under Section 129A to the Tribunal, in so far as 
C 
they are applicable, would be applicable to such 
application. The crucial words and expressions in 
Section 1290(4) are, "such application", "heard", "as if 
such application were an appeal" and "so far as may be". 
The expression "such application", inter alia, is referable 
to the application made by the Commissioner to the D 
Tribunal in pursuance of an order under sub-section (1) 
of Section 1290. The period prescribed in Section 1290 
for making application does not control the expression 
"such application". An application made under Section 
1290(4) pursuant to the order passed under sub-sections 
E 
(1) or (2) shall not cease to be "such application" merely 
because it has not been made within prescribed time. If 
the construction to the words "such application" is given 
to mean an application filed by the Commissioner before 
the Tribunal within the prescribed period only, the 
F 
subsequent expressions "heard", "as if such an 
application were an appeal"' and "so far as may be" 
occurring in Section 1290(4) of the Act may be rendered 
ineffective. [Para 12] [939-8-G] 
3. The clear and unambiguous provision in Section 
1290(4) that the application made therein shall be heard 
by the Tribunal as if it was an appeal made against the 
decision or order of the adjudicating authority and the 
provisions of the Act regarding appeals, so far as may be, 
G 
H 
932 
SUPREME COURT REPORTS 
[2012] 9 S.C.R. 
A shall apply to such application leaves no manner of doubt 
that the provisions of Section 129A (1) to (7) have been 
mutatis mutandis made applicable, with due alteration 
wherever necessary, to the applications under Section 
1290(4). Section 129A has been incorporated in Section 
B 1290. Section 129A(5) has become integral part of 
Section 1290(4) of the Act. [Paras 12 and 13) [939-G-H; 
940-A-B-D] 
4. Parliament intended entire Section 129A, as far as 
applicable, to be supplemental to Section 1290(4) and 
C that is why it provided that the provisions relating to the 
appeals to the Tribunal shall be applicable to the 
applications made under Section 1290(4). The 
expression, "including the provisions of sub-section (4) 
of Section 129A" is by way of clarification and has been 
D so said expressly to remove any doubt about the 
applicability of the provision relating to cross objections 
to the applications made und

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