Madras High Court
The Commissioner Of Customs vs The Customs Authority For on 14 February, 2025
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P.No.12398 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.02.2025
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
W.P.No.12398 of 2022
and
WMP No.11860 of 2022
The Commissioner of Customs,
Chennai II (Import Commissionerate)
Customs House,
No.60, Rajaji Salai,
Chennai – 600 001 ... Petitioner
vs
1. The Customs Authority for
Advance Rulings,
New Customs House, Ballard Estate,
Mumbai – 400 001.
2. M/s. Netlink ICT Private Limited,
X/24/A/B/CRT Building Jupiter Jn,
Piravom Road,
Oliyappuram P.O.
Koothattukulam,
Ernakulam. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorari or any other appropriate Writ, direction
or order to call for the records of the first respondent in Ruling
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Page 1/6
W.P.No.12398 of 2022
No.CAAR/Mum/ARC/03/202 dated 20.01.2022 issued in Application
No.CAAR/CUS.APPL/75/2021 O/o Commr.CAAR-MUMBAI and
quash the same as ultravires of the Customs Act, 1962.
For Petitioner : Mr.K.S.Ramaswamy
For Respondents : No appearance for R1
Mr.Hredia.H.S. for R2
ORDER
This writ petition has been filed challenging the advance ruling
order passed by the first respondent on the ground that the said order was
obtained by the second respondent by fraud and misrepresentation of
facts.
2. Admittedly, a statutory appeal under Section 28KA of the
Customs Act, 1956 has not been filed by the petitioner, if aggrieved by
the impugned order. Admittedly, there is a delay for the purpose of filing
the statutory appeal. The said delay also cannot be condoned as per the
statutory provision. Without exercising a statutory right of filing an
appeal, if aggrieved by the impugned order, the petitioner has chosen to
file this writ petition under Article 226 of the Constitution of India.
Section 28KA of the Customs Act, which is a statutory appeal provision
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for filing an appeal if aggrieved by the impugned advance order passed
by the first respondent, read as follows:
“28-KA Appeal - (1) Any officer authorised
by the Board, by notification, or the applicant
may file an appeal to the High Court against any
ruling or order passed by the Authority, within
sixty days from the date of communication of
such ruling or order, in such form and manner as
may be prescribed:
Provided that where the High Court is satisfied
that the appellant was prevented by sufficient
cause from presenting the appeal within the
period so specified, it may allow a further period
of thirty days for filing such appeal.
(2) The provisions of sections 28-I and 28-J shall,
mutatis mutandis, apply to the appeal under this
section.”
3. The learned counsel appearing for the respondent drew the
attention of this Court to the order passed by a learned Single Judge of
this Court in W.P.No.7905 of 2023 etc. batch dated 22.12.2023 and
would submit that the learned Single Judge has elaborately discussed the
maintainability of a writ petition filed beyond the prescribed time for
filing a statutory appeal and in the said writ petition, it has been held that
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the writ petition is not maintainable by observing as follows:
a) Whether the importer had resorted to
falsehood or obtained advance ruling through
fraud or misrepresentation cannot be decided
under the supervisory jurisdiction under Article
226 of the Constitution of India.
b) Such power of correction is vested only
with the High Court in its appellate jurisdiction
under amended Section 28KA of the Customs
Act, 1962.
c) The jurisdiction of the High Court under
Article 226 of the Constitution of India cannot be
transformed into an appellate jurisdiction
especially when the appellate remedy exists under
the Statute, namely, Section 28KA of the Customs
Act.
4. The learned counsel appearing for the respondent also placed on
record, the Division Bench judgment of the Madras High Court dated
28.08.2024 in CMA.No.1827 of 2024 in the case of M/s.Viewsonic
Technologies India Private Limited vs. The Customs Authority for
Advance Ruling and another and would submit that in the said Division
Bench judgment, it has been made clear that since the appellate remedy
has been provided under the Customs Act, 1962, the statutory appeal as
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per the provisions of the Customs Act is alone maintainable. The law is
now well settled that the writ petition is not maintainable when the
prescribed period provided under the Statute namely, the Customs Act
for filing the statutory appeal has got expired.
5. In view of the settled law as laid down in the aforesaid
decisions, the question of entertaining this writ petition does not arise.
6. In the result, there is no merit in this writ petition. Accordingly,
the Writ Petition is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
14.02.2025
Index : Yes / No
Speaking/Non-speaking order
vsi
To
1. The Customs Authority for
Advance Rulings,
New Customs House, Ballard Estate,
Mumbai – 400 001.
2. M/s. Netlink ICT Private Limited,
X/24/A/B/CRT Building Jupiter Jn,
Piravom Road, Oliyappuram P.O.
Koothattukulam, Ernakulam.
https://www.mhc.tn.gov.in/judis
ABDUL QUDDHOSE,J.
vsi
14.02.2025
https://www.mhc.tn.gov.in/judis
