MALABAR EXTRUSIONS PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) Rejection of the refund claim put forth by the petitioner, for excess deposit of Customs Duty pursuant to Ext. P1, is under challenge in this writ petition. Undisputed facts disclose that, the petitioner, on import of goods, submitted Ext. P1 Bill of Entry and duty was satisfied accordingly, effecting total deposit of Rs. 10,31,659/- under various heads. Subsequently, the petitioner realized that the commodity imported by the petitioner was not exigible to Customs Duty and accordingly, a refund application was preferred before the concerned authority vide Ext. P5 dated 29-3-2012. This was turned down by the Assistant Commissioner of Customs (Refund) as per Ext. P6 dated 11-4-2012 holding that, in so far as the assessment order stands, for not having it modified by a procedure known to law, the claim of the petitioner for effecting the refund was not liable to be entertained.

(2.) It was in the said circumstance, that the petitioner approached the 3rd respondent by submitting Ext. P7 appeal under Section 128 of the Customs Act, 1962. The appeal was not numbered and the same was rejected as per Ext. P9 proceedings dated 1-6-2012, holding that, Section 128 of the Customs Act was not liable to be invoked for claiming refund. The petitioner made a further representation by way of Ext. P10 dated 22-6-2012 before the Commissioner, pointing out the facts and figures and also alerting him that, no opportunity of hearing was given to the petitioner before passing Ext. P9 order. This was followed by Ext. P11 dated 11-9-2013, wherein an endorsement was made by the 3rd respondent/Commissioner in the form of a clarification, to the effect that, appeal would be possible only against an order passed by ADC/JC/DC/AC and for want of any such order, the appeal was not maintainable under Section 128 of the Customs Act.

(3.) The petitioner moved the 3rd respondent further by way of Ext. P13, followed by Ext. P14 representation referring to the sequence of events, which was rejected by the said respondent as per Ext. P15, stating that the appeal was belated, having been preferred after the stipulated period of 60 days. This in turn is under challenge in this writ petition.