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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6021 OF 2009

COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, GOA    Appellant(s)

                               VERSUS

M/S ADANI EXPORTS LTD.                             Respondent(s)

WITH

C.A. Nos. 6072-6073/2009

J U D G M E N T

R.F. Nariman, J.

1) Having  heard  Mr.  K.  Radhakrishnan,  learned  Senior

Counsel appearing on behalf of the Revenue for sometime and

after perusing the reference order to a larger Bench dated

14.03.2018, it is first necessary to set out Section 130A(1)

& (4) of the Customs Act.

“130A.  Application  to  High  Court.-  (1)  The Commissioner  of  Customs  or  the  other  party  may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 129B passed before 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),  by application  in  the  prescribed  form,  accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.”

(4) If, on an application made under sub-Section (1), the High Court directs the Appellate Tribunal

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to  refer  the  question  of  law  raised  in  the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction,  draw  up  a  statement  of  the  case  and refer it to the High Court.”

2) Mr. K. Radhakrishnan referred to an order of 2 learned

Judges of this Court in Commissioner of Customs, Bangalore

v.  Central Manufacturing Tech. Institute reported in 2002

(146) ELT 27 which reads as under:

“1.  Leave  granted.   The  High  Court  rejected  an application  for  reference  of  the  question  of  law arising from the order of CEGAT and the High Court agreed  with  the  view  taken  by  the  Tribunal  and disposed of the matter stating that the question of law does not arise from the order of CEGAT.  That was not the stage at which the High Court could have expressed its views on merits of the matter and the appropriate course for the High Court was to call for a statement and then decide the matter in an appropriate manner as provided under the law.

2. In that view of the matter, we set aside the order made by the High Court and remit the matter to the High Court for fresh examination.  The appeal is allowed accordingly.”  

We do not find anything in the text of Section 130A which

implies that the High Court is mandatorily required to call

for a statement from the Tribunal in every case, where a

reference is made.  We say so because of the language of

Sub-Section 4 which opens with an ‘if’.

3) A reading of Section 130A (1) & (4) would make it clear

that if the Commissioner of Customs or other party within

the  prescribed  period  of  limitation  applies  in  the

prescribed form to the High Court to direct the Appellate

Tribunal to refer to the High Court any question of law

arising from such order of the Tribunal, the High Court may

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do so.  What is clear on a reading of sub-section (4) is

that the High Court has a discretion on the facts of each

case  either  to  do  so  or  not  to  do  so.   This  becomes

absolutely plain from the first word in sub-section (4),

namely, “if”.    We find nothing in the language of Section

130A which first mandatorily obliges the High Court to call

for a statement from the Tribunal before deciding any such

application.   The  judgment  in  Commissioner  of  Customs,

Bangalore (supra) being incorrect is therefore overruled.

4) The question is answered accordingly and the appeals

stand disposed of.

   .......................... J.

       (ROHINTON FALI NARIMAN)

                     .......................... J.   (S. RAVINDRA BHAT)

                     .......................... J.   (V. RAMASUBRAMANIAN)

New Delhi; February 11, 2020.