Bombay High Court
Haji International vs Union Of India Thr The Secretary ... on 26 August, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-OS:13027-DB RPWL-16284-2024.DOC
Ashvini Narwade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L) NO.16284 OF 2024
IN
WRIT PETITION NO.1520 OF 2024
AND
WRIT PETITION NO. 1511 OF 2024
Haji International ... Petitioner
Versus
Union of India through ...Respondents
the Secretary Ministry of Finance
Mr. Darius Shroff, Senior Advocate, Mr. Anupam Dighe, Ms. Chandni
Digitally
Tanna, Mr. Prathamesh Chavan and Ms. Renita Ann Alex i/b. India Law
signed by
ASHVINI
ASHVINI
BAPPASAHEB
Alliance for the Petitioners.
BAPPASAHEB KAKDE
KAKDE Date:
2024.08.27
14:07:35
+0530 Mr. Subir Kumar a/w. Mr. Harshad Singnapurkar for Respondent No.2.
_______________________
CORAM : G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
RESERVED ON : 24th JULY 2024
PRONOUNCED ON : 26th AUGUST 2024
_______________________
JUDGEMENT (Per Firdosh P. Pooniwalla J.):
-
1. The present Review Petition seeks review of an Order dated 5 th
February 2024, whereby this Court has disposed of Writ Petition (L) No.3704
of 2024 filed by Petitioner No.1 and Writ Petition (L) No.3703 of 2024 filed
by Petitioner No.2 on the ground that it would be appropriate for the
Petitioners to take recourse to the remedy of an Appeal as provided under
Section 129-A of the Customs Act, 1962.
RPWL-16284-2024.DOC
2. Against the Order dated 5th February 2024 passed in Writ Petition (L)
No.3704 of 2024, Petitioner No.1 had filed a Special Leave Petition before the
Supreme Court. By an Order dated 15th April 2024, the Supreme Court was
pleased to dispose of the SLP by the following order:-
"O R D E R
Shri Balbir Singh, learned senior counsel for the petitioner submitted that
permission may be granted to the petitioner herein to withdraw this Special
Leave Petition with liberty to urge the issue regarding the time barred
demand/limitation, by way of a review petition before the High Court. His
submission is placed on record.
In the circumstances, the Special Leave Petition is dismissed as withdrawn
with the aforesaid liberty."
3. It is important to note that although liberty was sought before the
Supreme Court to urge the issue regarding the time barred demand/limitation
by way of a Review Petition before this Court, the said ground of limitation was
not taken in the original Writ Petitions. In fact, the Petitioners now, during the
course of hearing of this Review Petition, have sought amendments in the Writ
Petitions to bring the said grounds on record.
4. Mr. Darius Shroff, the learned Senior Advocate appearing on behalf of
the Petitioner, submitted that the Show Cause Notice issued by Respondent
No.2 on 14th December 2022 is barred by limitation. Mr. Shroff submitted that
the Shipping Bills, in respect of which the investigation was primarily
conducted, were filed for the period from 13 th April 2012 to 10th October 2016,
whereas the Show Cause Notice was issued on 14 th December 2022, i.e., after a
RPWL-16284-2024.DOC
period of 6 to 12 years. Mr. Shroff submitted that it is well settled law that, if
the statute does not prescribe any period of limitation, the power thereunder
has to be exercised within a reasonable time and the said reasonable time would
be the maximum time provided under the said Act to do a particular act. Mr.
Shroff relied upon a judgement of the Supreme Court in State of Punjab Vs.
Bhatinda District Co-Op. Milk Union Ltd.1 in this regard wherein the Supreme
Court observed that, if no limitation has been prescribed, the statutory
authority must exercise its jurisdiction within a reasonable period.
5. Further, Mr. Shroff submitted that it has been time and again held that
even if no limitation is prescribed under Rule 16 of the Customs Central Excise
Duties and Services Tax Drawback Rules, 1995 ("Drawback Rules"), a Show
Cause Notice ought to be issued within a reasonable period. Such a reasonable
period under the Drawback Rules has been held to be three years by the
Gujarat High Court in the cases of Raghav International Vs. Union of India 2
and SJS International Vs. Union of India3.
6. Mr. Shroff submitted that, in the present case, the Show Cause Notice
dated 14th December 2022, being issued beyond a period of 6 to 12 years from
the relevant dates, is time barred and thus renders the entire proceedings by
Respondent No.2 wholly without jurisdiction.
1 (217) ELT 325 (SC)
2 (384) ELT 653 (Guj.)
3 2022 (380) E.L.T, 577 (Guj.)
RPWL-16284-2024.DOC
7. Mr. Shroff submitted that the issue of limitation is a jurisdictional issue
and can be raised at any stage. Therefore it should be permitted to be raised at
the stage of review. In support of this submission, he relied upon the judgment
of the Supreme Court in Fatma Bibi Ahmed Patel Vs. State of Gujarat & Ors.4.
8. Further, Mr. Shroff submitted that, since large amounts had been
demanded towards duty and penalty, if the Petitioners are relegated to the
remedy of an Appeal, they would have to deposit large amounts. For this
reason also, the present Review Petition ought to be entertained.
9. Mr. Subir Kumar, the learned Counsel appearing on behalf of the
Respondents, submitted that the ground of limitation was not taken in the
Writ Petition. Therefore, it cannot be submitted that there was any error
apparent on the face of the order under review. Therefore, the Review Petition
is not maintainable. In support of this submission, he relied upon the
judgement of the Supreme Court in Sanjay Kumar Agarwal Vs, State Tax
Officer and Anr.5.
10. Mr. Subir Kumar further submitted that the question of limitation raised
is a mixed question of law and fact, which can be more appropriately raised in
an Appeal. Therefore, the Order dated 5 th February 2024, has correctly
relegated the Petitioners to the remedy of an Appeal.
4 (2008) 6 SCC 789
5 (2024) 2 SCC 362
RPWL-16284-2024.DOC
11. We have heard learned Counsel for the parties and perused the
documents on record.
12. It is well settled in law that a review can be entertained if a person
discovers new and important matter or evidence which, after the exercise of
due diligence, was not within his knowledge or could not be produced by him
at the time when the order was passed or on account of some error apparent on
the fact of the record.
13. In the present case, it is not even the case of the Petitioners that they
have discovered any new or important matter or evidence which was not within
their knowledge or which could not be produced by them when the said Order
dated 5th February 2024 was passed. Therefore, this Review Petition is not
maintainable on this ground.
14. Further, when the Order dated 5th February 2024 was passed, the
ground of limitation was not even taken in the Writ Petitions, and, therefore,
the Petitioners cannot contend that there is any error apparent on the face of
the record on that account. For this reason also, the present Review Petition is
not maintainable.
15. Further, merely because the Petitioners have to deposit monies while
filing an Appeal, does not mean that the said Writ Petitions should be
entertained by this Court.
RPWL-16284-2024.DOC
16. Further, all the issues raised in the Writ Petitions and the proposed
ground of bar of limitation can be raised in the Appeal under Section 129 A of
the Customs Act, 1962, to which the Petitioners have been relegated by the
said Order dated 5th February 2024. For this reason also, the Review Petition is
not required to be entertained.
17. In the light of the aforesaid discussion, and for all the aforesaid reasons,
the present Review Petition is dismissed. However, in the facts and
circumstances of the case, there will be no order as to costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI, J.)
