2018 (11) TMI 1530 - HC - Customs

Maintainability of petition - alternative remedy of appeal - demand of duty drawback even for the period prior to five years - time limitation - Held that - The petitioner has an alternative efficacious remedy of appeal against the impugned order. The Apex Court in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, 2013 (8) TMI 458 - SUPREME COURT , considered the question of entertaining writ petition where alternative statutory remedy was available, where it was held that Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. The instant writ petitions are not entertained to grant relief to the petitioners by exercising the extra ordinary writ jurisdiction under Article 226 of the Constitution of India - the petitioners are relegated to the alternative remedy of filing appeal against the impugned order, before the authorities below within one month from the date of receipt of a copy of this order - petition dismissed.

Summary

Issues:
1. Quashing of order confirming duty drawback demand for a period prior to five years.
2. Availability of alternative efficacious remedy of appeal against the impugned order.

Issue 1: Quashing of order confirming duty drawback demand for a period prior to five years:
The petitioner, engaged in the manufacture and export of readymade garments, filed a petition seeking to quash an order confirming duty drawback demand for a period prior to five years. The petitioner exported goods claiming benefit of drawback as per prescribed procedure. Subsequently, discrepancies were found in the declared value of goods leading to an investigation by customs authorities. The petitioner contended that the demand for duty drawback recovery beyond five years was unjustified. Despite previous court directions to decide the issue of limitation as a preliminary ground, the authorities confirmed the demand even for the period prior to five years. The petitioner argued that the decision was made without informing them and without due consideration to the question of limitation. Consequently, the petitioner sought relief through the writ petitions.

Issue 2: Availability of alternative efficacious remedy of appeal against the impugned order:
The High Court, after considering the petitioner's arguments and relevant case law, emphasized the principle that the court should not entertain writ petitions when an alternative statutory remedy is available. Citing the decision in Commissioner of Income Tax v. Chhabil Dass Agarwal, the court highlighted that interference under Article 226 should be avoided if an adequate alternative remedy exists unless exceptional circumstances warrant such intervention. The court referred to various judgments emphasizing the importance of exhausting statutory remedies before resorting to writ jurisdiction. Consequently, the court declined to grant relief through writ petitions and directed the petitioners to pursue the alternative remedy of filing an appeal against the impugned order within a specified period, ensuring that the appeal would not be dismissed on grounds of limitation if filed within the stipulated time frame.

In conclusion, the High Court dismissed the writ petitions, reiterating the importance of exhausting statutory remedies before seeking relief through extraordinary writ jurisdiction. The petitioners were directed to pursue the alternative remedy of appeal against the impugned order within a specified timeframe.