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TMI Blog2014 (6) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... single judge of this court it cannot be said to be an order passed under the relevant Act. As a matter of fact the petitioner was given an opportunity of being heard only because the court had directed the concerned respondent so to do as such exercise of power by the respondent no. 4 must be deemed to be pursuant to the direction given by the Supreme Court and not in ordinary course passed under the Act. There appears to be sufficient justification in the uncontroverted allegation made by the petitioner that the respondents were under an obligation to consider the whole case independently and to come to a finding. The order complained of does not really reflect any independent application of mind. appropriate authority directed to consider and dispose of the petitioner's claim for Duty drawback within a period of three weeks from the date of the communication of the order. - Decided in favour of assessee. - W. P. No. 188 of 2005 - - - Dated:- 29-4-2014 - SAMBUDDHA CHAKRABARTI, J. For the Appellant : Sourabh Banerjee and Ms. Sucharita Biswas. For the Respondent : R. Bharadwaj and K.K. Maiti. ORDER:- The Court : The immediate occasion for passing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some communications from the respondents authorities asking him to supply several documents. Summons were also issued against him. He says that he had submitted all the relevant documents but unnecessary demand from the respondents continued and in the process there was an inordinate delay in making payment of the drawback amount. 6. The petitioner has criticized this inaction on the part of the Customs authorities as harassing as well as contrary to the policy of the Central Board of Excise and Customs. He has referred to certain documents and public notice in terms of which the drawback claims are supposed to be paid within 24 hours. This impelled him to file the first writ petition which has been disposed of in the manner as mentioned earlier and the compliance of the direction passed by a learned single judge of this Court is the order impugned in the writ petition. 7. There are various grounds of challenge to the order - non-application of mind, reiteration of the earlier stand, absence of independent finding, non-consideration of the claim of the petitioner in terms of the order passed by the learned single judge, etc. 8. A more specific point of attack by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents have contended that filing of writ petition after the expiry of the period of limitation vitiates the intention of Parliament. 14. I for one do not find much justification in the stand taken by the respondents. The law on the point is well-settled. For filing an application under Article 226 of the Constitution there is no fixed period of limitation and as such neither the Limitation Act nor the time limits fixed in the schedule to the Act can be made rigorously applicable to a writ proceeding. The court over the years have only insisted that the conduct of the petitioner must not be blameworthy and there has not been any unnecessary or inordinate delay in approaching the court. A writ proceeding being outside the rigours of various periods of limitation is to be tested by the conduct of the party at whose instance it has been filed. While a court does not encourage a stale claim is to be adjudged after an inordinate delay it does not also lean in favour of curtailing a man's fundamental or statutory right by importing the concept of limitation with reference to the statutory period fixed for filing an appeal. 15. In Chandra Bhusan v. Dy. Director of Consolidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any event, one thing is clear and beyond doubt, that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances, whether the petitioner is guilty of latches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal. While there may be cases where even a long delay may not be evidence of latches on the part of the petitioner. 17. The judgements cited by the respondents in the case of Messrs. Singh Enterprises v. CCE [2008] 3 SCC 70 is on the face of it not applicable to the facts and circumstances of the case. There the challenge was to the order passed by a Division Bench of a High Court dismissing the writ petition filed by the appellant. The subject-matter of challenge was an order passed by the Commissioner (Appeals), Central Excise and Service Tax dismissing the appellant's appeal only on the grounds that it was filed 21 months after the date of service of the original order and the appellate authority had no power to condone the delay after 90 days wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Of 0course, if a Government or a public authority take up a technical plea, the court is to decide it and after the plea is well-founded, it has to be upheld by the court. But what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority unless of course the claim is not well-founded and by reason of delay in filing it the evidence for the purpose of resisting such a claim has become unavailable. 20. The disentitling features as mentioned in that case being wholly absent in the present case the principle laid down in it must be held to be applicable to the facts of the case and I do not buy the practice of merely taking such a misconceived technical plea without filing an affidavit to the writ petition. 21. Thus, there appears to be sufficient justification in the uncontroverted allegation made by the petitioner that the respondents were under an obligation to consider the whole case independently and to come to a finding. The order complained of does not really reflect any independent application of mind. 22. The petitioner has also given a list of the steps taken by him after taking over the proprietary right of the firm. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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