IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WP(C).No. 38168 of 2010(U) ------------------------ PETITIONER : --------------------- M/S. SOHAMS FOUNDATIONS ENGINEERING PVT. LT.D, 301-303, THAPAR COMPLEX, SECTOR N0.15, PLOT NO. 51, CBD BELAPUR, NAVI MUMBAI - 400 614, REPRESENTED BY ITS AUTHORISED SIGNATORY NANDANAN.C.P. BY ADV. SRI.A.KUMAR RESPONDENT(S): ------------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF FINANCE, NEW DELHI-01. 2. ASST. COMMISSIONER OF CUSTOMS (IMPORTS), OFFICE OF THE ASST. COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, KOCHI-31. R1 & R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ANTONY DOMINIC, J. ------------------------- W.P (C) No. 38168of 201 0 -------------------------- Dated this the 17th January, 2011 J U D G M E N T Petitioner is engaged in the execution of works including construction and other civil works. According to the petitioner, they imported excavators covered under Chapter 84 of the Customs Tariff Act. These goods were to be re-exported after use. Petitioner cleared the goods by filing a bill of entry for home consumption and remitted duty at the rate as applicable as per notification 27/2002. The goods were not re-exported within the time limit stipulated in the notification. Proceedings were initiated and at that stage petitioner claimed the benefit of Notification No.27/2008 issued on 1.3.2008. Rejecting his claim, Ext.P6 order was issued under Section 115 of the Customs Act. Though the order is appealable, no appeal or other proceedings were filed against the said order and the order has attained finality. It is thereafter that this writ petition has now been filed challenging Ext.P6 order. Relying on the Apex Court judgment in Jagtamba Devi Vs. Hem Ram [.2008 (3) SCC 509] learned counsel contended W.P (C) No.38168 of 2010 2 that non application of mind as reflected in Ext.P6 order renders it vulnerable to challenge under Article 226 of the constitution of India. It is also his contention that in view of the law laid down by the Apex Court in Government of India Vs. Indian Tobacco Association [ 2005 (187) ELT 162] since by Ext.P4 notification No.27/2008, ExtP2 was substituted, he is entitled to get the benefit of Ext.P4. 2. In my view none those questions arise for consideration in this writ petition. The reason is that the Customs Act 1962 itself provided the remedy available to the litigant against an order in the nature of Ext.P6. The time provided for such remedy has expired and the petitioner lost his right of appeal. Therefore by recourse of a proceedings under Article 226 of the Constitution of India, petitioner cannot now get a time barred cuse of action resurrected and on that basis challenge Ext.P6 at this distance of time. If the challenge is now entertained that will enable litigants like the petitioner to revive the cause of action which is time barred and that clearly is impermissible. Therefore I do not propose to enter into the W.P (C) No.38168 of 2010 3 merits of the writ petition. Writ petition fails and it is accordingly dismissed. Sd/- ANTONY DOMINIC JUDGE ma /True copy/ P.A to Judge W.P (C) No.38168 of 2010 4