TMI Blog2010 (10) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... without jurisdiction – Held that: - claim which has been considered and rejected by the Customs Officer. Therefore, the order cannot be said to be one without jurisdiction - exception pointed out by the Apex inapplicable – Petition dismissed - 25989 of 2010(W) - - - Dated:- 1-10-2010 - Antony Dominic, J. REPRESENTED BY : Shri P.A. Augustian, for the Petitioner. Shri Tojan J. Vathikulam, S.C., CBEC, for the Respondent. [Judgment]. - Petitioner imported used photocopier machines through the Cochin Port some time in 2006. Alleging that the import was in violation of the provisions of the Customs Act, proceedings were initiated by the respondents. The adjudication proceedings, concluded by Ext. PI order of confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions made or Ext. P11 judgment, respondents handed over a copy of Ext. P12 to the petitioner's Custom House Agent, rejecting the refund claim submitted by the petitioner on the ground that the petitioner failed to produce originals of the documents, supporting their refund claim. It is stated that so far, neither the order is communicated to the petitioner nor were they issued any reply to Ext. P10 notice. It is in these circumstances, this writ petition is filed, challenging Ext. P12 order, rejecting the refund of the claim. 3. Contention raised by the counsel for the petitioner is that the refund of fine and penalty applied for by the petitioner is not a claim covered by Section 27 of the Customs Act and, therefore, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is writ petition, petitioner is attempting to revive a cause of action which has become stale and time-barred. Respondents also contend that production of original documents is insisted in order to ensure transparency in the matter of refund. It is, therefore, contended that the writ petition deserves to be dismissed. 5. Counsel for the petitioner in reply submitted that as the order was passed without authority of law, the refund cannot be denied to him, on the technical reason that the period prescribed for appeal in Section 128 has run out and that an appeal was not filed. 6. If, as stated by the respondents, the writ petition is liable to be rejected on the ground that the cause of action has become stale and time-barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her hand, respondents are categoric in their statement that copy was sent. Thus, it has to be accepted that the order was served on the agent immediately on the passing of Ext. P12 order. 8.If that be so, I should proceed on the basis that the order of rejection passed by the officer of customs on 24-11-2008 was served on the agent of the petitioner and that the petitioner did not pursue the appellate remedy. In such circumstances, the question to be considered is whether this Court will be justified in invoking its jurisdiction under Article 226 enabling the petitioner to revive a cause of action, which he lost by virtue of the provisions contained in the Customs Act. This very question has been considered by a Division Bench of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t where fundamental rights are sought to be enforced, where principles of natural justice are violated and where orders are bad for want of jurisdiction, the rule of alternate remedy will not be insisted superior courts. According to the learned counsel, this is a case where the order is passed without authority of law, and therefore, the exception which applies to orders passed without jurisdiction, should apply to his case. 10. In my view, the said principle canvassed by the learned counsel is inapplicable to the facts situation. Under the scheme of the Customs Act, it for the Customs Officer to decide on the refund claimed. In this case, it is such a claim which has been considered and rejected by the Customs Officer. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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