[Cites 13, Cited by 0]
Telangana High Court
M/S Spice Jet Limited vs The Additional Commissioner Of Customs on 10 April, 2026
Author: P.Sam Koshy
Bench: P.Sam Koshy
1
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SUDDALA CHALAPATHI RAO
WP.No.27339 of 2025
Dt.10.04.2026
Between:
M/s SPICE JET LIMITED
and four others
.... petitioners
and
The Additional Commissioner of Customs
and two others.
...Respondents
O R D E R:
(Per the Hon'ble Sri Justice Suddala Chalapathi Rao)
1. The instant Writ Petition has been filed challenging the
Order in Original No.185/2022/ADJN-CUS-ADC, dt.14.03.2023
on the file of the Addl. Commissioner Customs, GST LB Stadium
i.e., the 1st respondent herein as confirmed by the
common Order-in-Appeal No.HYD-CUS-000-APP1-227-228-23-24,
dt.27.03.2024, on the file of the 2nd respondent (Appeals-1), and
the consequential Final Order No.A/30015-30024/2025,
dt.20.01.2025 passed by the 3rd respondent - Customs Excise
and Excise Service Tax Appellate Tribunal, Southern Region
Bench in Customs Appeals No.30748-30757 of 2024, by calling for
the records and consequently set aside the original order
No.185/2022-ADJN-CUS-ADC, dt.14.03.2023 passed by the 1st
respondent as arbitrary contrary to the provisions of customs Act
1962 and consequent set aside the same.
2. The brief facts of the case are that the petitioner No.1 is a
company duly incorporated under the provisions of the Companies
Act, having its registered office at Indira Gandhi International
Airport, Terminal-1D, New Delhi - 110037, India, and an
additional operational office at 319, Udyog Vihar, Phase-IV,
Gurgaon - 122016, Haryana. The petitioner No.1 is a well-
established entity in the aviation and airline industry, carrying on
diversified operations including air transportation, warehousing of
goods, logistics, and allied trade services, and it has been issued
with an Importer Exporter Code (IEC) bearing No.0593003667.
3. The petitioner No.1 entered into a sub-sub-lease deed
dt.28.07.2021 (hereinafter referred to as the "Lease Deed") with
M/s GMR Hyderabad Aviation SEZ Limited (hereinafter referred to
as "GHASL") for the establishment of a Free Trade Warehousing
Zone (FTWZ) within the Special Economic Zone (SEZ) premises. It
is engaged in the business of trading and warehousing as
contemplated under the terms of the Lease Deed and the leased
premises were handed over to the 1st petitioner in August, 2021
and its commercial operations commenced in September, 2021.
Further, as per Clause 3 of the said Lease Deed, the petitioner
No.1 was permitted to allow third parties to use the premises on a
license basis and Clause 3.2(a) specifically stipulates that the
petitioner shall not create any lien or charge over the leased
premises in favour of third parties, however, it may permit third
parties to use the premises on a license basis, subject to the
condition that such sub-users shall be solely responsible for
compliance with all obligations under the Lease Deed, and not
limited to payment obligations.
4. It is stated that prior to execution of the Lease Deed, the
petitioner No.1 had obtained approval from the Government of
India vide reference No.9-481/SCZ/HYD/2019/103-SE,
dt.05.02.2020, for establishing a trading unit admeasuring 33,000
sq. meters on Acre 1.60 guntas of land within the FTWZ situated
at GHASL, Mamidipalli Village, Shamshabad Mandal, Ranga
Reddy District, Telangana, and the said approval was extended
from time to time. The SEZ framework is intended to promote
exports, attract foreign direct investment (FDI), and generate
employment opportunities by providing a competitive, efficient,
and hassle-free business environment for entities engaged in
international trade.
5. It is further submitted that M/s NADFA Trading FZE
dispatched 21 consignments of goods to the petitioner's
warehouse situated in the FTWZ at Plot No.8F, Survey No.99/1,
GMR Aerospace and Industrial Park, GMR Hyderabad Aviation
SEZ Ltd., Rajiv Gandhi International Airport, Shamshabad. Out of
the said consignments, 14 consignments belonged to one entity
and 7 consignments to UIEPL and that the said goods were
intended for export to M/s NADFA Trading FZE, Hamriyah Free
Zone, Sharjah, UAE.
6. While so, basing upon the specific intelligence, the
Directorate of Revenue Intelligence (DRI), Hyderabad Zonal Unit,
conducted inspection and verification of the goods stored in the 1st
petitioner's premises, and found 667 cartons covered under 7
invoices pertaining to M/s UIEPL, wherein the goods declared
were Leather Belts and Leather Wallets, with a total declared value
of Rs.8.36 crores, however, upon examination, the DRI formed an
opinion that the quality of the goods did not justify the declared
value, and accordingly, the services of a Chartered Engineer, Sri
N.R. Rao, were engaged, who assessed the value of the goods at
Rs.1.67 crores as against the declared value of Rs.8.36 crores.
7. It is further stated that upon investigation, it was alleged
that neither the goods nor the staff were present at the premises
at the relevant time and that no supporting business records were
available at the registered premises, and were in fact, non-existent
entities. Based on the said valuation report, the Additional
Commissioner of Customs called upon the petitioner to submit
relevant documents for verification. The petitioner duly furnished
all documents as required. Upon scrutiny, it was observed by the
respondent authorities that the tax invoices issued by M/s UIEPL
contained endorsements indicating an intention to claim benefits
under the RODTEP scheme. However, the SEZ online system
reflected that the exports were filed under duty drawback claims.
8. Subsequently, a show-cause notice dt.01.07.2022 was
issued to the 1st petitioner, to which reply dt.28.07.2022, was
submitted by the petitioners. However, it is contended by the
petitioners that without properly considering the said reply and
without affording a reasonable opportunity of being heard, the 1st
respondent passed Order-in-Original No.185/2022-ADJN-CUS-
ADC, dt.14.03.2023, holding that the goods were undervalued and
ordered the goods to be confiscated with an option of redemption
upon payment of a fine of Rs.5 lakhs. Further, imposed penalty of
Rs.1,00,00,000/- each under Section 114(iii) of the Customs Act,
1962 on Sri Mohd. Sabahuddin, M/s UIEPL, and its directors. In
addition to the said penalties, separate penalty of Rs.5 lakhs each
was imposed under Section 114AA on Sri Mohd. Sabahuddin, M/s
UIEPL, and its directors and also a penalty of Rs.5 lakhs each
under Section 114(iii) on the petitioners.
9. Aggrieved by the said Order-in-Original, the petitioners
preferred appeal before the 2nd respondent in Appeal Nos.HYD-
CUS-000-APP-1-227 and 228-23-24. However, the said appeals
came to be dismissed by common order, dt.27.03.2024, on the
ground of limitation. Thereafter, the petitioners preferred further
appeals before the 3rd respondent by way of Customs Appeal
Nos.30748-30757 of 2024, upon payment of the mandatory pre-
deposits. The 3rd respondent, by its common Final Order, upheld
the decision of the 2nd respondent.
10. It was observed by both the 2nd and 3rd
respondents/appellate authorities that the Orders-in-Original,
dt.14.03.2023, was served upon the petitioners on 20.03.2023
and as such the appeals ought to have been filed within the
statutory period prescribed under the Customs Act, 1962, i.e.,
within 60 days, extendable by a further period of 30 days
condonation at the discretion of the Commissioner (Appeals),
however, the petitioners had filed the appeals on 03.10.2023 after
the communication of the Orders-in-Original on 20.03.2023.
Consequently, the 2nd respondent i.e., Commissioner (Appeals)
dismissed the appeals as time-barred, without going into the
merits of the case, by common order, dt.03.10.2023. On further
appeal preferred there-against, the 3rd respondent held that the
2nd respondent had no power to condone delay beyond the
statutory period prescribed under the Act and, therefore, found no
infirmity in the order passed by the 2nd respondent, and thus,
both the appellate authorities refused to entertain the appeals
beyond the prescribed period of limitation as envisage under
section 128 of the Customs Act, 1962.
11. It is further contended that, both the appeals were rejected
solely on the ground of limitation, without a proper adjudication
on merits, which deprived the petitioners of their valuable right.
In the aforesaid circumstances, the petitioners were constrained to
file the present writ petitions challenging the orders passed by the
respondents.
12. Heard Sri Mayur Reddy, learned Senior Counsel appearing
for the petitioners and Sri Domenic Fernandez, the learned Senior
Standing Counsel appearing for the respondents.
13. Sri Mayur Reddy, learned Senior Counsel appearing for the
petitioners, contended that the appeals filed under the provisions
of the Customs Act, 1962 ought not to have been rejected at the
threshold without proper determination of the factual issues. It is
submitted that the 2nd and 3rd respondents, being appellate
authorities, empowered to appreciate the factual matrix of the
case, ought to have entertained the appeals and adjudicated the
matter on merits, as the delay was properly explained. Instead,
rejected the appeals solely on the technical ground of limitation,
thereby defeating the legitimate right of the petitioners to
challenge the original orders.
14. The learned Senior Counsel further contended that when the
statute provides a right of appeal, such right should not be
rendered illusory and defeated on technical grounds. Even if the
appeals were filed beyond the prescribed period, the appellate
authorities erred in arriving at the conclusion that the appeals
have been filed after expiry of more than six months, when in fact,
the Orders-in-Original, dt.14.03.2023, was served upon the
petitioners on 20.03.2023 and even as per the Order-in-Appeal
No.HYD-CUS-000-APP1-227-228-23-24, dt.27.03.2024, the
petitioner filed appeal on 03.10.2023, thus, after deducting the
statutory period of 60 days for filing appeal, the delay that
occurred in filing the appeal is about 140 days approximately and
not six months as observed in the said appeal, and thus, the
respondents ought to have considered whether any sufficient
cause was shown for condonation of said delay and should have
taken the appeals on file and decided on merits. It is thus
contended that in the present case, the 2nd and 3rd respondents
have erred in dismissing the appeals on the ground of limitation
without considering the explanation offered by the petitioners, for
such delay.
15. It is further contended that although section 128 of the
Customs Act, 1962 prescribes a limitation period of 60 days for
filing an appeal, with a further condonable period of 30 days by
the appellate authority, the restriction placed on condonation of
delay beyond the said period is over restrictive or unduly rigid,
and that such restriction should not be construed in a manner so
as to restrict the substantive right of appeal, more so, when the
said period is not mandatory but only a procedural in nature.
16. In support of the aforesaid contentions, learned Senior
Counsel for the petitioner placed reliance on the judgments of the
Hon'ble Supreme Court in Mukhee Gopalan vs.
Cheppilatputhanpurayial Aboobacker 1, Tata Steel Limited
vs. Rajkumar Banerjee and others 2, National Insurance
Company Ltd. vs. Pranay Sethi and others 3, Government of
Maharashtra (Water Resources Department) represented by
Executive Engineer vs. Burse Brothers Engineers and
Contractors Private Limited 4, along with the judgment of the
Hon'ble High Court of Karnataka in the case of Sri Kanakadurga
Developers vs. Assistant Commissioner of Service Tax and
others 5 and the Hon'ble High Court of Bombay in Navabharat
1 1995 (5) SCC 5
2 2025 SCC Online SC 1042
3 (2017) 16 SCC 680
4 2021 (6) SCC 460
5 (2018) (359) ELT 286 (AAR)
Enterprises Ltd. vs. Commissioner of Customs (Import) 6,
wherein it is stated that the law of limitation would be applicable
to the special statute.
17. The learned Senior Counsel further submitted that the law
of limitation applies equally to special statutes unless expressly
excluded. In terms of the principles governing limitation, the
provisions of Sections 4 to 24 of the Limitation Act, 1963, would
apply insofar as they are not specifically excluded by the special
statute, and thus, even where the Customs Act prescribes a
limited period for condonation of delay, the principles underlying
the Limitation Act, 1963, would still be applicable, and therefore,
if sufficient cause is shown, the appellate authorities ought to
have considered the appeals even if filed beyond the prescribed
period.
18. It is also contended that it is trite law that this Court, in
exercise of its powers under Article 226 of the Constitution of
India, can intervene in appropriate cases to prevent injustice.
Thus, in the instant case, even if the appellate authorities are held
to have no power to condone delay beyond the statutory period of
6 2015 SCC Online BOM 8592
60 days along with the further condonable period of 30 days, this
Court can exercise its extraordinary jurisdiction to ensure that the
parties are not subjected to undue hardship. Further, it is
submitted that in the present case, there is no inordinate delay
and that the reasons for the delay have been
properly/satisfactorily explained.
19. The learned Senior Counsel thus submits that in the
circumstances of the case, this Court can condone the delay and
remit the matter to the 2nd respondent for consideration on merits,
or in the alternative, adjudicate the matter in the present writ
petition itself, so as to put a quietus to the dispute and afford an
opportunity to the petitioners to establish their case,
substantially.
20. Per contra, the learned Senior Standing Counsel, Sri
Domenic Fernandez, appearing for the respondents, contended
that once a statute prescribes a specific period of limitation,
particularly under the Customs Act, 1962, the same is binding
and must be strictly adhered to. It is further submitted that the
Section 128 of the Customs Act prescribes a limitation period of
60 days, with a further condonable period of 30 days, and the 2nd
respondent has only such limited power to condone delay within
the said period, and thus, beyond the said period of 60 + 30 days,
the appellate authority has no jurisdiction to entertain the appeal,
and cannot invoke the provisions of Section 5 of the Limitation
Act, 1963, to condone the delay beyond the statutorily prescribed
period, and further the delay has not been properly or
satisfactorily explained.
21. In support of the above contention, learned Senior Standing
Counsel placed reliance on the judgment of the Hon'ble Supreme
Court in Oil and Natural Gas Corporation Limited V/s.
Gujarat Energy Transmission Corporation Ltd., and others 7,
wherein it has been held that when a statute prescribes a specific
period of limitation, the authorities concerned have no power to
extend such period beyond what is expressly provided under the
statute.
22. The learned Senior Standing Counsel further placed reliance
on the judgment of the Hon'ble Supreme Court in Assistant
Commissioner (CT), LTU, Kakinada & Ors. vs. M/s. Glaxo
7 (2017) 5 SCC 42
Smith Kline Consumer Health Care Limited 8, wherein it has
been held that the High Court, in exercise of its jurisdiction under
Article 226 of the Constitution of India, cannot entertain a writ
petition so as to effectively condone the delay in filing a statutory
appeal, particularly when an alternate statutory remedy is
available and when there is no challenge to jurisdictional error or
violation of principles of natural justice, and thus, contended that
the writ petition itself is not maintainable.
23. It was further contended that when an efficacious alternative
remedy is available under the statute, the High Court cannot
entertain a writ petition and may non-suit the petitioner on that
ground alone, for the reason that, if a party approaches the
Hon'ble High Court after expiry of the maximum limitation period
prescribed under the statute, the Court cannot disregard such
statutory limitation and entertain the petition as a matter of right.
24. The learned Senior Standing Counsel thus contended that
the wide powers conferred on this Court under Article 226 cannot
be exercised in a manner that defeats or overrides the legislative
intent. Further, placing reliance on the principles laid down by the
8 2020 (19) SCC 681
Hon'ble Supreme Court in the aforesaid judgments, it is
contended that permitting such writ petitions would render the
statutory scheme of limitation otiose. Accordingly, it is argued that
this Court has no jurisdiction, even under Article 226 of the
Constitution of India, to entertain the present writ petition and
prayed to dismiss the writ petition.
25. Having given earnest consideration to the submissions made
by the learned counsel appearing on either side, perused the
material on record.
26. On a perusal of the pleadings of both sides, it is evident that
for the alleged violations attributed to the petitioners, the original
authority initiated proceedings, which culminated in Order-in-
Original No.185/2022/ADJN-CUS-ADC, dt.14.03.2023. Aggrieved
thereby, the petitioners preferred appeals before the 2nd
respondent and 3rd respondent, which were dismissed. However,
it is not in dispute that there was a delay in filing the said appeals
before the 2nd respondent.
27. Under the provisions of Section 128 of the Customs Act,
1962, an appeal is required to be filed within a period of 60 days
from the date of communication of the Order-in-Original, with a
further condonable period of 30 days by the appellate authority at
its discretion. Thus, the total permissible period for entertaining
an appeal is 60 + 30 days and beyond the said period, the
appellate authority does not have jurisdiction to condone the delay
or entertain the appeal.
28. In the present case, the petitioners, admittedly, filed the
appeals before the 2nd respondent on 03.10.2023 after the
communication of the Orders-in-Original on 20.03.2023, and in
view of the statutory limitation, the 2nd respondent declined to
entertain the appeals as it lacked jurisdiction to condone the delay
beyond the prescribed period. The 3rd respondent, upon further
appeal, examined the issue within its limited scope and upheld
the decision of the 2nd respondent, holding that the rejection of the
appeals on the ground of limitation was in accordance with law.
29. In view of the above, it stands established that both the
appellate authorities have acted strictly in accordance with the
statutory scheme of limitation, and the contention of the learned
Senior Counsel for the petitioners that the appellate authorities
ought to have entertained the appeals despite the delay cannot be
accepted in view of the express provisions of the Customs Act,
1962.
30. At this juncture, it is apposite to consider the judicial
precedents relied upon by both parties. The learned Senior
Standing Counsel for the respondents has relied upon the
judgment of the Hon'ble Supreme Court in Oil and Natural Gas
Corporation Limited's case (supra), wherein it was held that
when a statute prescribes a specific period of limitation along with
a limited power of condonation, the authorities cannot extend
such period beyond what is expressly provided. The said principle
squarely applies to the present case insofar as the 2nd respondent
is concerned, as the authority is bound by the statutory limitation
and cannot invoke any inherent or equitable powers to condone
delay beyond the prescribed period.
31. Further reliance has been placed on M/s Glaxo Smith Kline
Consumer Health Care Limited's case(supra), wherein it has
been held that the High Court, in exercise of jurisdiction under
Article 226 of the Constitution of India, should not ordinarily
entertain writ petitions so as to circumvent statutory remedies,
particularly when the delay in availing such remedies is beyond
the condonable period. The said judgment emphasizes judicial
restraint and adherence to legislative intent in matters of
limitation.
32. It is not in dispute that the ratio laid down in the aforesaid
judgments is fully applicable to the extent that the appellate
authorities were justified in rejecting the appeals as time-barred.
33. However, the applicability of the said judgments is required
to be understood in the context in which they were rendered. The
Hon'ble Supreme Court, in the above decisions, did not lay down
an absolute bar on the exercise of jurisdiction under Article 226 of
the Constitution of India in all cases involving delay. The said
decisions primarily caution against routine interference and
emphasize that statutory timelines should not be lightly
disregarded.
34. On the other hand, the various judgments relied upon by the
learned Senior Counsel for the petitioners, as noted in the earlier
paragraphs, would show that procedural laws, including
limitation, are intended to advance justice and not defeat
substantive rights. While those judgments lay down general
principles favoring a liberal approach in appropriate cases, they
cannot be construed as enabling statutory authorities to act
beyond the limitation prescribed under special enactments like
the Customs Act, 1962. To that extent, their direct applicability is
limited.
35. Nevertheless, the broader principle emerging from the said
precedents, that technicalities should not defeat substantive
justice, remains relevant while exercising constitutional
jurisdiction under Article 226.
36. The principal grievance of the petitioners is that they have
been deprived of an opportunity to have their case examined on
merits by the appellate authority, particularly when the statute
provides a right of appeal, and denial of such right has resulted in
failure of substantive justice, as the issues involved require proper
appreciation of facts and evidence.
37. It is well-settled legal position that when a statute prescribes
a specific period of limitation along with a limited power of
condonation, the authorities constituted under the statute are
bound by such limitation and cannot travel beyond it. At the same
time, it is equally settled that the procedural prescriptions relating
to limitation are intended to regulate the exercise of rights and not
to extinguish substantive rights, especially where the
consequences of non-adjudication on merits would result in
apparent injustice.
38. Though the contention of the learned Senior Counsel for the
petitioners that the provisions of the Limitation Act, 1963, would
automatically extend the period of limitation under the Customs
Act, 1962, is not accepted, we are of the considered view that, in
exercise of extraordinary jurisdiction under Article 226 of the
Constitution of India, this Court can intervene in appropriate
cases to ensure that technicalities do not defeat the ends of
justice.
39. In the instant case, though the delay exceeds the statutorily
condonable period, is not of such a nature as to indicate
deliberate inaction or lack of bona fides. On the contrary, the
petitioners have pursued the matter by availing the appellate
remedies, albeit belatedly, raising issues which require factual
adjudication and which have not been examined at all by the
appellate authority on merits. In such circumstances, denial of
such opportunity would result in foreclosing the petitioners'
statutory remedy of appeal without any adjudication on the
substantive issues involved and a grave injustice would cause to
the petitioners, while right of appeal is provided by the statute for
fair justice.
40. Accordingly, while not interfering with the legal position
governing limitation under the Customs Act, 1962, and in exercise
of jurisdiction under Article 226 of the Constitution of India and in
the facts and circumstances of the present case, we set aside the
order in appeal No.HYD-CUS-000-ATP1-227-228 dt.27.03.2024,
on the file of the 2nd respondent (Appeals-1), and the
consequential final order No.A/30015-30024/2025, dt.20.01.2025
passed by the 3rd respondent, insofar as the Order in Original
No.185/2022/ADJN-CUS-ADC, dt.14.03.2023, is concerned, by
condoning the delay occurred in filing the appeal before the 2nd
respondent, subject to the condition of the petitioners paying a
sum of Rs.25,000/-(Rupees Twenty Five thousand) to the
Telangana State Legal Services Authority, within a period of two
(02) weeks from today.
41. Upon such payment, the petitioners shall approach the 2nd
respondent and file an appropriate memo enclosing proof of
payment and, on such compliance, the 2nd respondent shall
restore the appeal No.HYD-CUS-000-ATP1-227-228 to its file and
adjudicate the same afresh on merits, after affording reasonable
opportunity to both parties, strictly in accordance with law.
42. With the above directions, the Writ Petition is partly allowed.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_________________________________
P.SAM KOSHY, J
________________________________
SUDDALA CHALAPATHI RAO, J
10th April, 2026
gra
