TaxTMI 
TaxTMI 
2014 (9) TMI 378
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....aims to have paid the customs duty under protest. On 24-10-1990 the petitioner exported the ultrasound scanners and fully utilised the imported components in the manufacture and export of the said ultrasound scanners. 3. On account of the export of the ultrasound scanners on 24-10-1990 the petitioner claims to have become entitled to the duty drawback of Rs. 7,77,033/-. On 27-2-1991 the petitioner filed a claim for refund/drawback of the said duty along with the relevant documents with the Assistant Collector of Customs (Drawback), New Delhi. 4. On 15-9-1991 the Assistant Collector of Customs (Drawback) intimated the petitioner that the claim of the petitioner was not covered under Sections 74 or 75 of the Customs Act, 1962. Vide the said letter the Assistant Collector of Customs informed the petitioner that the claim of the petitioner could not be considered for payment and the claim was being filed. 5. On 20-3-1992 the petitioner referring to the letter dated 15-9-1991 of the Assistant Collector of Customs wrote to the Collector of Customs requesting for consideration of the claim for refund favourably. 6. On 4-6-1992 the Senior Analyst (Drawback), Governm....
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....m had been rejected as being time-barred and for non-compliance of filing the requisite application and documents. 12. In contrast to the stand of the petitioner, the respondents have contended that the petitioner had not exhausted the alternative remedy of filing an appeal with the CEGAT. The respondents have further contended that the petitioner had not applied for the claim to the proper authorities in proper form as per the rules within time despite being so informed vide the letters dated 15-9-1991 and 24-3-1993. The respondents have even on merits contested the entitlement of the petitioner for claiming the drawback. The respondents have contended that the petitioner has not filed any appropriate application for refund with the proper officer (i.e. refund section) for processing of the claim on merits. Learned counsel for the respondents has contended that the claim of the petitioner was belated and even the present writ petition has been filed after a lapse of nearly five years from the first rejection of the claim of the petitioner. 13. On consideration of the respective contentions of the parties we are of the considered view that the petitioner has forgone the....
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..... The Supreme Court in the case of Delhi Admn. v. Kaushilya Thakur, (2012) 5 SCC 412, has laid clown as under : 10.......In our view, the impugned order as also the one passed by the learned Single Judge are liable to be set aside because while granting relief to the husband of Respondent 1, the learned Single Judge overlooked the fact that the writ petition had been filed after almost 4 years of the rejection of an application for allotment of 1000 sq yd plot made by Ranjodh Kumar Thakur. The fact that the writ petitioner made further representations could not be made a ground for ignoring the delay of more than 3 years, more so because in the subsequent communication the authorities concerned had merely indicated that the decision contained in the first letter would stand. 11. It is trite to say that in exercise of the power under Article 226 of the Constitution, the High Court cannot entertain belated claims unless the petitioner offers tangible explanation (State of M.P. v. Bhailal Bhai). 19. Further in the case of Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 the Supreme Court after examining various judicial pronouncements laid down a....
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....umstances of the case at hand clearly justify the laches or undue delay, writ petitioners are not entitled to any relief against anybody including the State. 50. In Shiv Dass v. Union of India, this Court opined that : (SCC p. 277, para 8) "8. ... The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction." 51. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, this Court held : (SCC p. 174, para 26) "26. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a wri....
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.... not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches." 54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well settled. They are : (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an applicat....
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.... is delay the Court must necessarily refuse to entertain the petition but the principle is that a Court would refuse to entertain a petition which is highly belated unless there is a reasonable explanation for the delay. One of the satisfactory way of explaining delay, as laid down by the Supreme Court in the case of Shankara Co-operative Housing Society Ltd. (supra), is for the petitioner to show that he has been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. It has been further held that representations would not be adequate explanation to take care of delay. 23. In the present case there is no explanation forthcoming from the petitioner for the inordinate delay of about five years in approaching this Court. The only explanation is that the petitioners had been writing letters/representations. 24. The petitioner as far back as on 15-9-1991 was informed about the rejection of the claim of the petitioner which was then reiterated vide letters date....