TMI Blog2016 (7) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... right of the writ petitioner which calls for issuance of any Writ in the nature of Mandamus. - GA 3807 of 2015, APO 478 of 2015 & WP 903 of 2015 - - - Dated:- 1-2-2016 - GIRISH CHANDRA GUPTA AND SHIB SADHAN SADHU, JJ Mr. R. K. Chowdhury, Adv., Ms. S. Joarder, Adv., for the appellant Mr. S. B. Saraf, Adv. And Mr.K. K.Maiti, Adv., for the respondents. ORDER The Court : The subject matter of challenge in the appeal is an order dated 1st October, 2015 by which the writ petition was summarily dismissed. The facts and circumstances of the case, briefly stated, are as follows: The writ petitioner an importer lodged a Bill of Entry dated 30th April, 2013 describing the goods imported as general purpose machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for enhancement of value and further any requirement of SCN/A0/PH may kindly be dispensed with. We accept the fact that the goods have been misdeclared and agree for any decision taken as per law. They also admitted that they had committed an offence and prayed for condonation thereof. They also prayed for early release of the goods considering that they are liable to recurring demurrage and detention charges. There is as such, no manner of doubt that the writ petitioner himself admitted the offence. He agreed to enhancement of value. He admitted the fact that he has mis-declared the goods. He also agreed to accept any decision, which the authorities may take in accordance with law. It appears from the office note dated 6th June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready have indicated that the other bill of entry has not been disclosed. In the aforesaid background of admitted facts, the case made out by the writ petitioner is as follows:- a) the writ petitioner gave up his right to raise objection at the instance of customs officials; b) that the petitioner was not liable to make payment; c) that he is entitled to refund, and d) that he intends to prefer an appeal but he could not succeed in doing so because the orders in original apropos to the aforesaid two bills of entry both dated 30th April, 2013 were not furnished to him. Mr.Saraf, learned advocate, appearing for the Customs has produced the letter dated 6th May, 2013 and 8th May, 2013 both written by the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harashtra And Others reported in (2013) 4 SCC 465 which reads as follows:- A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the writ petitioner that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement on the basis of which writ jurisdiction is resorted to. Mr.Chowdhury contended that such right is to be found in Section 153 which provides as follows:- 153. Service of order, decision, etc.- Any order or decision passed or any summons or notice issued under this Act, shall be served,- (a) by tendering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made to the judgment in the case of Krishna Bahadur Vs. M/s. Purna Theatre And Others, reported in AIR 2004 SC 4282, wherein the following views were expressed: 8. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; wavier is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 9. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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