SOHAMS FOUNDATIONS ENGINEERING Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER is engaged in the execution of works including construction and other civil works. According to the petitioner/ they imported excavators covered under Chapter 84 of the Customs Tariff Act. These goods were to be re -exported after use. Petitioner cleared the goods by filing a bill of entry for home consumption and remitted duty at the rate as applicable as per Notification 27/2002. The goods were not re -exported within the time -limit stipulated in the notification. Proceedings were initiated and at that stage petitioner claimed the benefit of Notification No. 27/2008 issued on 1 -3 -2008. Rejecting his claim, Ext. P6 order was issued under Section 115 of the Customs Act. Though the order is appealable, no appeal or other proceedings were filed against the said order and the order has attained finality. It is thereafter that this writ petition has now been filed challenging Ext.P6 order. Relying on the Apex Court judgment in Jagtamba Devi v. Hem Ram : [2008 (3) SCC 509] learned counsel contended that non -application of mind as reflected in Ext. P6 order renders it vulnerable to challenge under Article 226 of the constitution of India. It is also his contention that in view of the law laid down by the Apex Court in Government of India v. Indian Tobacco Association : [2005 (187) E.L.T. 162] since by Ext. P4 notification No. 27/2008, Ext. P2 was substituted, he is entitled to get the benefit of Ext. In my view none those questions arise for consideration in this writ petition. The reason is that the Customs Act, 1962, itself provided the remedy available to the litigant against an order in the nature of Ext.P6. The time provided for such remedy has expired and the petitioner lost his right of appeal. Therefore by recourse of a proceedings under Article 226 of the Constitution of India, petitioner cannot now get a time barred cause of action resurrected and on that basis challenge Ext. P6 at this distance of time. If the challenge is now entertained that will enable litigants like the petitioner to revive the cause of action which is time barred and that clearly is impermissible. Therefore I do not propose to enter into the merits of the writ petition.

(2.) WRIT petition fails and it is accordingly dismissed.