TaxTMI 
TaxTMI 
2014 (6) TMI 758
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....ies for release of the drawback amount to the petitioner. 3. In compliance with the said order the respondent no. 4 herein by a communication dated September 17, 2004 had inter alia informed the petitioner's firm that in spite of several summons the firm was not co-operating wit the authorities. He expressed his doubt about the existence of the firm which, according to him, warranted an investigation of agreement paper recording change of proprietorship from M/s. Surajbhan to the petitioner. He, therefore, requested the firm to co-operate with the department for the completion of the investigation and once no objection recording release of drawback was received from the Special Investigation Branch only the Drawback Department would be in a position to release the drawback and thus the representation made by the petitioner was disposed of. 4. This had left the petitioner aggrieved and his challenge to the same is by way of the present writ petition. 5. For our purpose no detailed examination of the factual aspects is called for. Suffice it to say, however, that the petitioner is an exporter of readymade garments and in the year 2000 made shipment of a large quantity of garme....
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.... certificate of change of name of the bank realization and for some other documents which the petitioner says was submitted long ago. 10. Thus, the petitioner has inter alia prayed for a writ in the nature of Mandamus for quashing and setting aside the order impugned in the writ petition and to release the drawback amount along with interest and for other reliefs. 11. The respondents in spite of being given repeated opportunities did not file any affidavit-in-opposition though such direction was passed by a learned single judge as early as on February 7, 2005. 12. Although there is no denial of the allegations and statements made by the petitioner the parties had filed their respective written notes of submissions. The only point taken by the respondents in their note of submission, apart from quoting a portion of the order impugned in the writ petition, is the point of limitation. 13. According to the respondents against the order passed by the respondent no. 4 the petitioner could have filed an appeal under Section 128 of the Customs Act. But instead of filing an appeal the petitioner has filed the writ petition beyond the statutory period of limitation of filing an appeal. T....
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....r observed in the said case that the High Court had in fact exalted the rule of practice into a rule of limitation and in the facts of that case while allowing the appeal the Supreme Court further observed that apart from the ground that the petition was not presented within 90 days there was nothing to indicate that the appellants in that case were guilty of latches or undue delay. 16. Such view has been judicially well-settled and oft-repeated. If any further reference is necessary reliance may be placed on the case of Smt Sudama Devi -Vs.-Commissioner and Others, reported in AIR 1983 SC 653 where also the Supreme Court had reiterated that so far as a writ petition was concerned there could be no hard and first rule of 90 days by way of a period of limitation. The general rule of latches alone could be applied setting aside the judgement of the concerned High Court from which the appeal was filed. It was held that the view taken by the High Court that the writ petition was beyond time was not correct inasmuch as the High Court had proceeded on the assumption that there was a period of limitation of 90 days and unless sufficient cause was shown as contemplated in Section 5 of the....
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.... rank than Collector of Customs. Only then the question of filing an appeal to the designated authority arises. Since the order passed by the respondent no. 4 was pursuant to the direction of a learned single judge of this court it cannot be said to be an order passed under the relevant Act. As a matter of fact the petitioner was given an opportunity of being heard only because the court had directed the concerned respondent so to do as such exercise of power by the respondent no. 4 must be deemed to be pursuant to the direction given by the Supreme Court and not in ordinary course passed under the Act. 19. That apart courts have frowned upon the practice of the respondents to take the point of limitation without touching on the merit of the case. In the case of Madras Port Trust v. Himangshu International by its proprietor V. Vendatadri AIR 1979 SC 1144 the only question that cropped up for consideration before the Supreme Court by special leave was whether the claim of the respondent for refund of a certain sum was barred by Section 110 of the Madras Port Trust Act. The Supreme Court held: "The principle of limitation base of this section is one which t....