SCN not challenged within prescribed time- HC justified in dismissing the writ on the ground of limitation–TAXGURU.IN

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Samrat Exporters and Importers Vs Assistant Commissioner of Central Excise and Customs (Kerala High Court)

It is an admitted fact that the appellant had challenged the show cause notice issued to it before the appellate authority but the same was filed not within the time prescribed under the Act. Therefore, the appellate authority did not go into the merits of the case and dismissed the same on the ground of limitation. Since the said order has attained finality before the apex court, the appellant cannot reopen the merits of the case again before this court. Though the learned Single Judge has not entertained the Writ Petition, he had granted instalment facility to the appellant to discharge the liability in 12 monthly instalments.

We find that no interference is warranted to the judgment of the learned Single Judge and, hence the Writ Appeal is accordingly dismissed.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

The writ petitioner before the learned single judge in W.P.(C) No.1171 of 2007 is the appellant in this appeal. The writ petition was filed by the appellant for setting aside the notice of demand dated 2.1.2007 produced as Ext.P11 in the Writ Petition.

SCN not challenged within prescribed time- HC justified in dismissing the writ on the ground of limitation

2. The petitioner is a hundred percent export unit. The unit was given permission for exporting buffallo meat and tapioca to gulf countries. According to the appellant, he could not export to the desired level as there was ban on export of buffallo meat. The appellant was also granted a private bonded warehouse license for processing export of buffallo meat and tapioca without payment of duty based on the terms of the letter of permission. The appellant had imported capital goods which were eligible for exemption from customs duty due to the export commitment of the appellant. Since the appellant did not export and failed to fulfill the export obligation, the condition of import stood violated and a show cause notice dated 5.7.2001 was issued to the appellant asking him why an amount of Rs.11,79,811/-should not be imposed on him as customs duty. The appellant filed an appeal before the appellate authority which was rejected on the ground of delay and an appeal challenging the said order of the first appellate authority was also filed before the CESTAT. The said appeal was also dismissed. Challenges against the said order of the CESTAT before this court as well as the hon’ble Apex Court, were also dismissed. Thereafter, the first respondent has issued demand notice dated 2.1.2007 to remit an amount of Rs.15,19,996/- along with appropriate interest. The said notice of demand was challenged in the Writ Petition.

3. The learned Single Judge, after hearing both counsel, found that though the appeal filed by the appellant was dismissed as not filed within time, the merits of the matter were never gone into. The attempt of the appellant was that he was making a new attempt to resurrect the case based on the merits which he could have canvassed before the appellate authority, but failed so because the appeal was filed out of time. Though the writ petition was dismissed, the learned single Judge used his discretion in granting instalment facility to the appellant to discharge liability in 12 monthly instalments starting from May 2018 onwards.

4. This Writ Appeal is filed challenging the judgment of the learned Single Judge on the ground that the learned Single Judge ought to have gone into the merits of the contentions raised in the appeal filed against the show cause notice, which was dismissed on the ground of delay.

5. Heard the learned counsel on both sides.

6. It is an admitted fact that the appellant had challenged the show cause notice issued to it before the appellate authority but the same was filed not within the time prescribed under the Act. Therefore, the appellate authority did not go into the merits of the case and dismissed the same on the ground of limitation. Since the said order has attained finality before the apex court, the appellant cannot reopen the merits of the case again before this court. Though the learned Single Judge has not entertained the Writ Petition, he had granted instalment facility to the appellant to discharge the liability in 12 monthly instalments. The counsel for the appellant was not in a position to submit before this court whether the appellant has availed of the instalment facility granted.

7. On going through the judgment of the learned Single Judge, we are of the considered opinion that the learned Judge has rightly dismissed the Writ Petition without going into the merits as the same has become final at the hands of the appellate authority confirmed by the order of the apex court. Even though the learned Single Judge has not entertained the Writ Petition, the appellant was given instalment facility to wipe of the liability. We find that no interference is warranted to the judgment of the learned Single Judge and, hence the Writ Appeal is accordingly dismissed.

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