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TMI Blog2011 (3) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... n to claim undue Duty Drawback - main thrust of the arguments of the learned counsel for the petitioner is that in view of the action of the Tribunal in not passing any orders in the stay application, the petitioner is prejudiced as there is no effective remedy to protect his interest. Therefore, he moved this court under Article 226 of the Constitution - when there as an effective, efficacious alternative remedy available and having chosen that remedy, it is not proper for any party to come before this court under Article 226 of the Constitution of India, unless it is shown to this court that there is a violation of any fundamental right or the principles of natural justice, writ petition is disposed of with a direction to the 3rd responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. 3. Aggrieved by the above order, the petitioner preferred an appeal before the Customs Excise and Service Tax Appellate Tribunal, South Zonal Branch at Chennai along with the stay application and the same was taken up for hearing on 10-1-2011 and it was adjourned to 31-1-2011 and again adjourned to 14-2-2011 for further hearing. As there is no interim order in their favour, finding no other alternative remedy, the petitioner has approached this court challenging the prohibitory order. 4. Respondents 1 and 2 have filed a counter and stated that the writ petition is not maintainable on the sole ground that the petitioner has already availed the appellate remedy on 4-11-2010 before the Customs Excise and Service Tax Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of claiming undue Duty Drawback. 6. Respondents have further submitted in the counter that the Managing Director of the petitioner has given a statement before the investigating officers of the customs that his employee by name S.P. Boopalan connived with the said two exporters and committed violation of the Customs Act, with the sole intention to claim undue Duty Drawback. Therefore, the act of the petitioner has caused loss to the Government exchequer and there is material evidence disclosing the role of the petitioner in the fraudulent claim of undue Duty Drawback by the exporters. The action taken by the respondents through the prohibitory order passed under Regulation 21 of the said Regulation is in accordance with law end cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused the material documents and the relevant provisions of law. 11. Admittedly, the petitioner is a Clearing Agent and they had licence up to 30-2-2019 and as there are commissions and omissions, the respondents have proceeded to enquire into the matter and pass an order. Though the petitioner has rightly chosen to appeal before a forum which is an effective forum of any matter arising out of orders passed by the respondents and also filed a petition for stay of the order, he has chosen the remedy before this court under Article 226 of the Constitution of India simultaneously, which will not suit the petitioner, even assuming that there is delay in disposal of the said application. 12. Law is well settled that when there as an e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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