2011 (1) TMI 568 - HC - Customs

Challenging Final Orders Post-Appeal Period Barred by Law: Ext. P6 Writ Dismissed

SOHAMS FOUNDATIONS ENGINEERING Versus UNION OF INDIA

The court dismissed the writ petition, highlighting that challenging a final order like Ext. P6 through Article 226 of the Constitution after the appeal ... Notification 27/2002 issued on 1-3-2008 - Goods were not re-exported within the time limit stipulated in the notification - Proceedings were initiated and at that stage petitioner claimed the benefit of Notification No. 27/2008 issued on 1-3-2008 - Rejecting petitioner claim, Ext. P6 order was issued under Section 115 of the Customs Act - Held that:- the Customs Act 1962 itself provided the remedy available to the litigant against an order in the nature of Ext.P6 - The time provided for such remedy has expired and the petitioner lost his right of appeal - Therefore by recourse of proceedings under Article 226 of the Constitution of India, petitioner cannot now get a time barred cuse of action resurrected and on that basis challenge Ext. P6 at this distance of time - Therefore, writ petition fails and it is accordingly dismissed. Issues:1. Interpretation of Customs Tariff Act regarding re-export of imported goods.2. Claiming benefit of a subsequent notification after the time limit for re-export has expired.3. Applicability of Article 226 of the Constitution of India in challenging a final order.Analysis:Issue 1:The petitioner engaged in works involving construction imported excavators under Chapter 84 of the Customs Tariff Act with the intention of re-exporting them after use. However, the goods were cleared for home consumption, and duty was paid as per notification 27/2002. Subsequently, the goods were not re-exported within the stipulated time, leading to the initiation of proceedings and the issuance of order Ext. P6 under Section 115 of the Customs Act.Issue 2:The petitioner claimed the benefit of Notification No. 27/2008 issued on 1-3-2008 after the expiry of the time limit for re-export. The court, referencing the Apex Court judgment, emphasized that the Customs Act 1962 provides remedies against orders like Ext. P6, and the time for such remedies had lapsed. The court stated that allowing challenges under Article 226 of the Constitution at a later stage would enable litigants to revive time-barred causes of action, which is impermissible.Issue 3:The court declined to entertain the writ petition, noting that the petitioner had lost the right of appeal by not filing any appeal or proceeding against the final order Ext. P6 within the prescribed time. The judge emphasized that attempting to challenge Ext. P6 through Article 226 of the Constitution after the expiry of the appeal period would effectively resurrect a time-barred cause of action, which goes against legal principles. Consequently, the court dismissed the writ petition.In conclusion, the court dismissed the writ petition, emphasizing that the petitioner cannot resurrect a time-barred cause of action through Article 226 of the Constitution and challenge a final order like Ext. P6 after the appeal period has lapsed.