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2014 (6) TMI 758 - HC - CustomsDenial of draw back claim - Bar of limitation - Non application of mind - Writ petition - Alternate remedy - Held that:- For filing an application under Article 226 of the Constitution there is no fixed period of limitation and as such neither the Limitation Act nor the time limits fixed in the schedule to the Act can be made rigorously applicable to a writ proceeding. The court over the years have only insisted that the conduct of the petitioner must not be blameworthy and there has not been any unnecessary or inordinate delay in approaching the court. A writ proceeding being outside the rigours of various periods of limitation is to be tested by the conduct of the party at whose instance it has been filed. While a court does not encourage a stale claim is to be adjudged after an inordinate delay it does not also lean in favour of curtailing a man's fundamental or statutory right by importing the concept of limitation with reference to the statutory period fixed for filing an appeal. 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. There appears to be sufficient justification in the uncontroverted allegation made by the petitioner that the respondents were under an obligation to consider the whole case independently and to come to a finding. The order complained of does not really reflect any independent application of mind. appropriate authority directed to consider and dispose of the petitioner's claim for Duty drawback within a period of three weeks from the date of the communication of the order. - Decided in favour of assessee.
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