TaxTMI 
TaxTMI 
2010 (10) TMI 162
X X X X Extracts X X X X
X X X X Extracts X X X X
....g liberty to the petitioner, to get the goods released on payment of redemption fine of Rs. 3,70,000/- and penalty of Rs. 1,90,000/-. Though the goods were got cleared on payment as advised, petitioner filed an appeal against Ext. PI order before the Commissioner of Customs (Appeals). The appellate authority, by Ext. P2 order, upheld Ext. PI, but, however, the fine and penalty were reduced and was fixed at 10% and 5% respectively of the assessable value of the goods imported. As a result of the appellate order, the petitioner became eligible for refund of Rs. 38,740/-. 2. Accordingly, petitioner filed Ext. P3 refund claim on 8-3-2008 in Form No. 102. Along with the refund claim, petitioner produced only copies of the documents requ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Customs Refund Application (Form) Regulations, 1995 are inapplicable. It is also their case that in Ext. P11 judgment, this Court had held that refund claims cannot be rejected on technical grounds. Counsel for the petitioner also contended that in Ext. P14, the circular issued by the Government of India, it was clarified that no formal application for refund is necessary and that a simple letter from the person, who made such a deposit would suffice. It is also his contention that there is no statutory requirement, obliging an importer to produce the originals of the documents to support a claim for refund of the fine and penalty. 4. Respondents, on the other hand, contended that the application for refund should be in Form No....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat, therefore, the petitioner is not entitled to relief in this writ petition, it may not be necessary for this Court to enter into the merits of the controversy. Therefore, I shall examine that question. 7. Section 128 of the Customs Act provides for appellate remedy. This Section provides that any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Commissioner of Customs, may appeal to the Commissioner (Appeals) within 60 days from the date of communication to him of such decision or order. Admittedly, Ext. P12 is an order passed by an officer of Customs, dealing with a claim of refund, made by the petitioner under the provisions of the Customs Act and, therefore, this i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the judgment in District Executive Officer v. ABEL (2006 (2) KLT 758), where it has been held thus:- "In a case where party was not vigilant and had failed to avail of the statutory remedy he is not justified in invoking the extra ordinary jurisdiction of this Court under Art. 226 of the Constitution of India. Finality has been attached to the final determination order and this court shall not come to the rescue of the party who was not vigilant of his rights and has not availed of the statutory remedy available to him. By entertaining the writ petition under Art. 226 of the Constitution of India this Court would be permitting a party to bypass the statutory remedy. We are, therefore, of the considered view, this court sitting in Art. ....