w w w . L a w y e r S e r v i c e s . i n

M/s. Soft Hosiery Mills, Represented by its Proprietor, N. Balasubramaniam v/s Commissioner of Customs and Central Excise (Appeals) & Another

Company & Directors' Information:- J G HOSIERY PRIVATE LIMITED [Active] CIN = U18101TZ2001PTC009707

Company & Directors' Information:- K D S HOSIERY PRIVATE LIMITED [Active] CIN = U18101PB2001FTC024327

Company & Directors' Information:- J M HOSIERY MILLS PRIVATE LIMITED [Active] CIN = U17299PB2000PTC023753

Company & Directors' Information:- R M H HOSIERY PRIVATE LIMITED [Active] CIN = U17125DL2007PTC167271

Company & Directors' Information:- P T M HOSIERY PVT LTD [Active] CIN = U52322WB1994PTC062394

Company & Directors' Information:- M G HOSIERY PRIVATE LIMITED [Active] CIN = U17124TZ2002PTC010195

Company & Directors' Information:- J J HOSIERY MILLS PRIVATE LIMITED [Active] CIN = U45203WB2000PTC091570

Company & Directors' Information:- S V H SOFT PVT LTD [Strike Off] CIN = U72900DL1999PTC100422

Company & Directors' Information:- O K HOSIERY MILLS PVT LTD [Active] CIN = U99999DL1980PTC010979

Company & Directors' Information:- D D HOSIERY PVT LTD [Active] CIN = U18101WB1973PTC028694

Company & Directors' Information:- M. B. HOSIERY PRIVATE LIMITED [Active] CIN = U18101WB2008PTC125110

Company & Directors' Information:- R R HOSIERY PRIVATE LIMITED [Active] CIN = U18101MH1984PTC034394

Company & Directors' Information:- K K HOSIERY PRIVATE LIMITED [Active] CIN = U18204MH2014PTC251777

Company & Directors' Information:- B B HOSIERY PRIVATE LIMITED [Strike Off] CIN = U74999MH2015PTC267158

Company & Directors' Information:- M C S HOSIERY PRIVATE LIMITED [Strike Off] CIN = U51311WB2001PTC093781

Company & Directors' Information:- THE INDIA HOSIERY MILLS LTD [Strike Off] CIN = U17121WB1949PLC018383

Company & Directors' Information:- C L SOFT PRIVATE LIMITED [Active] CIN = U72200TG2000PTC034995

Company & Directors' Information:- D SOFT INDIA PRIVATE LIMITED [Active] CIN = U72300TN2002PTC048782

Company & Directors' Information:- A I SOFT PRIVATE LIMITED [Strike Off] CIN = U72100KA1991PTC011568

Company & Directors' Information:- Q SOFT INDIA PRIVATE LIMITED [Strike Off] CIN = U99999MH2001PTC130725

Company & Directors' Information:- S P HOSIERY PVT LTD [Strike Off] CIN = U51311PB1985PTC006113

Company & Directors' Information:- M N T SOFT PRIVATE LIMITED [Active] CIN = U72200TG2013PTC087421

Company & Directors' Information:- A R E-SOFT PRIVATE LIMITED [Strike Off] CIN = U72300TN2013PTC093452

Company & Directors' Information:- C P SOFT PRIVATE LIMITED [Strike Off] CIN = U74999TG2000PTC035803

    W.P.(MD) No.10716 of 2010 and M.P. (MD) No.1 of 2010

    Decided On, 07 September 2010

    At, High Court of Judicature at Madras


    For the Petitioner: C. Saravanan, Advocate. For the Respondents: Vijay Karthikeyan, Advocate.

Judgment Text

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records and quash the impugned order-in-original No.175/2007, dated 16.07.2007 bearing reference C.No.VIII/20/236/2006-DBK passed by the second respondent Assistant Commissioner (DBK), Custom House, Tuticorin, as confirmed by the first respondent Commissioner (Appeal).)

Heard the argument of Mr.C. Saravanan, learned counsel appearing for the petitioner and Mr. Vijay Karthikeyan, learned Senior Standing Counsel, who is taking notice for the respondents.

2. the Writ Petition is directed against the order dated 16.07.2007 passed by the second respondent, viz., the Assistant Commissioner of Customs, Thoothukudi, made in O.I.O.No.175 of 2007.

3. The petitioner initially moved the second respondent on the show cause notice demanding certain amounts regarding the repayment of excess paid drawback amount along with interest. The Authority, by the impugned order dated 16.07.2007, rejected the case put forth by the petitioner and confirmed the demand of excess paid drawback amount along with interest. As against the said order, the petitioner moved the Commissioner of Customs and Central Excise (Appeals) with appeal No.C24/68/2008-TTN (Customs). The said appeal was filed in terms of Section 128 of the Customs Act, 1962 (hereinafter referred to as ?the Act?). Under the said provision, an appeal will have to be filed within 60 days and since the appellate authority has power to condone the delay for a further period of 30 days, the appellate authority rejected the appeal filed by the petitioner on the ground that it was filed beyond the limitation period prescribed under Section 128 of the Act. Thereafter, for curious reasons, the petitioner moved the South Zonal Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The Appellate Tribunal, by order dated 10.08.2009, rejected the appeal stating that it is not maintainable before the Tribunal and the matter will have to be presented before the appropriate forum.

4. Mr. Vijay Karthikeyan, learned Senior Standing Counsel appearing for the respondents pointed out that even the Tribunal under Section 129-A(3) of the Act has power to entertain appeal filed only three months from the date on which the order sought to be appealed and, therefore, the Tribunal correctly rejected the case of the petitioner. The learned counsel also pointed out that the only other appropriate forum is the Central Government, which can entertain a revision in terms of Section 129-DD(2) of the Act. Even in that provision, the limitation prescribed that an application has to be filed within three months and the Central Government has further power to condone the further delay of three months. Therefore, the petitioner cannot even avail such remedy, having admittedly gone before the wrong forum beyond the limitation period. Therefore, he prayed for dismissal of the Writ Petition.

5. Further, Mr. C. Saravanan, learned counsel for the petitioner referred to a decision of this Court passed in W.P.Nos.3325 and 3326 of 2005, dated 21.04.2005. In that case, this Court found that 70 days delay pleaded by the petitioner was for justifiable reason. Therefore, exercising the extra-ordinary power, the delay was condoned.

6. The learned counsel has also referred to a decision of the Division Bench of the Principal Seat of this Court in W.A.Nos.1222 and 1223 of 2002, dated 10.06.2002. In that case also, the Division Bench, on its own, condoned the delay for the reasons weighed with them.

7. It is not clear as to how those orders are anyway helpful to the petitioner, especially when the relief was given in a particular instance and they do not lay down a general precedent in terms of law. When a statute prescribed limitation and also gives further time limit for condonation of delay and if such statutory authorities do not condone the delay or such appeals are not filed within the limitation period prescribed under the Act, certainly a power under Article 226 of the Constitution of India cannot be exercised for waiving such statutory limitation. Instead of doing justice, it will be derailing the law made by the parliament. The petitioner has not made out

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any case for exercising the extra-ordinary jurisdiction under Article 226 of the Constitution of India. Under the said circumstances, the petitioner, having missed the bus in three successive forums, cannot consider the Article 226 of the Constitution of India, as the last forum. 8. The Writ Petition lacks bona fides and accordingly, the same stands dismissed. Consequently, the connected miscellaneous petition stands closed. However, there will be no order as t costs.