2010 (10) TMI 162 - HC - Customs

Writ jurisdiction Alternative remedy writ petition filed against rejection of refund claim on ground of non-submission of original documents revenue contending that order passed in 2008 and petition time barred - Court has indicated exceptions to the rule of alternate remedy and pointed out that 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 - order is passed without authority of law and therefore the exception which applies to orders passed 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

Summary

Issues:
1. Adjudication of proceedings related to the import of used photocopier machines.
2. Refund claim filed by the petitioner under the Customs Act.
3. Requirement of producing original documents for refund claim.
4. Applicability of Customs Refund Application Regulations, 1995.
5. Jurisdiction of the High Court under Article 226 in cases of statutory remedies not pursued.
6. Applicability of exceptions to the rule of alternate remedy as per Supreme Court judgments.

Analysis:

1. The petitioner imported used photocopier machines, leading to adjudication proceedings under the Customs Act. The initial order of confiscation was later modified through an appeal to the Commissioner of Customs (Appeals), resulting in a refund eligibility for the petitioner.

2. The petitioner filed a refund claim under Form No. 102, seeking a refund of the fine and penalty imposed. The contention was raised regarding the coverage of such claims under Section 27 of the Customs Act and the applicability of Customs Refund Application Regulations, 1995.

3. The dispute arose over the requirement of producing original documents to support the refund claim. The respondents insisted on the submission of original documents, leading to the rejection of the refund claim by Ext. P12 order.

4. The petitioner argued against the necessity of producing original documents, citing a circular by the Government of India and the absence of a statutory requirement for such production.

5. The High Court deliberated on the jurisdiction under Article 226 concerning cases where statutory remedies were not pursued. The court considered the timeliness of the appeal process under Section 128 of the Customs Act and whether the petitioner could revive a cause of action through the writ petition.

6. The court referred to a Division Bench judgment emphasizing the importance of availing statutory remedies before seeking relief under Article 226. The petitioner's argument regarding exceptions to the rule of alternate remedy, as per a Supreme Court judgment, was also considered.

In conclusion, the High Court dismissed the writ petition, following the principles laid down by the Division Bench and determining that the petitioner was not entitled to relief in the proceedings. The court found the exceptions to the rule of alternate remedy inapplicable to the case, as the order in question was not deemed to be without jurisdiction but rather an erroneous or illegal order.