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TMI Blog2021 (6) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... he alternative, the respondent could have mandated the petitioner to move the competent authority under Foreign Trade (Development and Regulation) Act, 1992 and obtain a clarification. Instead of doing so, the respondent applied his own understanding of the policy notification. What the respondent has done is not in accordance with Section 17 of the Customs Act. The respondent authority had acted illegally and in violation of the statutory procedure - matter is remitted to the file of the respondent to pass order afresh in accordance with law - Petition allowed by way of remand. - W.P.(MD)No.15183 of 2020 And WMP(MD)No.12789 of 2020 - - - Dated:- 8-3-2021 - Honourable Mr.Justice G.R.Swaminathan For the Petitioner : Mr.S.Baskaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counter. 4 .The petitioner has filed a rejoinder in response to the counter along with a typed set of papers. 5 .The foremost contention raised by the learned standing counsel is that the present writ petition will have to be dismissed in view of the decision of the Supreme Court reported in 2020 (36) GSTL 305 (ACCT, LTU, Kakinada vs. Glaxo Smith Kline Consumer Health Care Ltd., ). In the said decision, the Supreme Court had specifically overruled the decisions of the various High Courts which had held that even if the period for filing statutory appeal has expired, the order-in-original passed by the assessing authority can be challenged in writ petition. 6 .Per contra, the learned counsel appearing for the petitioner br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the action of the Statutory Authority; (ii) if there is unreasonableness in the action of the Statutory Authority; (iii) if perversity writs large in the action taken by the Authority; (iv) if the Authority lacks jurisdiction to decide the issue and (v) if there has been violation of the principles of natural justice, the Court will step in and exercise its jurisdiction under Article 226 of The Constitution of India. 8 .Now the question that has to be determined is whether the case on hand would fall within one of those parameters. The facts are fairly clear. The petitioner had imported what are known as refractory bricks. The petitioner had enclosed materials to show that the import of these refractory bricks are being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the 1 [import or export of goods or services or technology]: [Provided that the provisions of this sub-section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies.] (3)All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4)Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, reassess the duty leviable on such goods. (5)Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what was meant by this expression. Thereafter, clarification was provided by DGFT vide Trade Notice No.8/2020-2021, dated 04.05.2020. 12 .The respondent should have adopted a similar approach in this case. He could have contacted the other port authorities and ascertained the position. He could have moved the competent authority in DGFT and obtained clarification. Without doing so, he chose to straightaway pass the impugned order. This is clearly unfair as well as violation of Section 17 of the Customs Act. Thus, more than one parameter set out in Mahindra and Mahindra case is attracted. 13 .There is also yet another controversy. The petitioner would claim that the impugned order was never served in the first instance on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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