The judgment establishes the principle that the writ jurisdiction cannot be invoked if the statutory remedy by way of appeal has not been pursued. It also clarifies the interpretation of statutes and the application of notifications, emphasizing that notifications may not have retrospective effect unless explicitly stated.

Manjula Chellur, J.

Heard the learned Counsel for the petitioner as well as the learned Sr. Standing Counsel for the respondents.

2. It is not in dispute that the appellant herein is engaged in the execution of works like construction and other civil works. For the work of the appellant, certain articles like Excavators covered under Chapter 84 of the Customs Tariff Act were Imported by the appellant. Initially these goods were to be re-exported after use. However, the petitioner/appellant cleared the goods by filing the Bill of Entry for home consumption and paid duty at the rate applicable, in accordance with the Notification No. 27/2002 hat was in existence at the relevant point of time. It is not in dispute that the goods were not re-exported within the time limit stipulated in the Notification 27/2002. Therefore, proceedings came to be initiated for recovery of duty and interest. At that stage, the appellant herein approached the respondents authorities seeking for extension of the benefit of the Notifications No.27/2008, which came to be issued on 01/03/2008. It is also not in dispute that the claim of the appellant was considered only for one Bill of Entry, which came within the time limit prescribed under the substituted Notification 27/2008 and rejected the claim in respect of the other Bills of Entry. Apparently, no appeal provided under the statute came to be filed by the appellant. Subsequently, he filed WP(C) 38168 of 2010, challenging the order at Ext. P6.

3. According to the learned Single-Judge, the order at Ext. P6 ought to have been challenged before the statutory appellate authority; having failed to do so, the appellant cannot approach the High Court under Article 226 of the Constitution of India, seeking writ jurisdiction. In other words, once remedy open to them was not availed, he is not allowed to approach this Court to get the relief in respect of a time barred cause of action.

4. The appellant is before us challenging judgment of the learned Single Judge. According to him, the writ petition is maintainable even with regard to a claim which is time barred, as long as he would be able to establish that the order is arbitrary in nature for want of consideration of the controversy raised by him. According to him, right from the beginning, he insisted upon the authorities to extend the benefit of the notification 27/2008, as the same is a continuation of the notification 27/2002; therefore, the authorities concerned ought to have specifically answered the said question raised by the appellant. In the absence of the same, he has a right to challenge the said order on the ground that the crucial aspect of the matter was never considered by the authorities; therefore, arbitrariness has resulted in.

5. So far as the second argument is concerned, according to him, the interpretation of the statute indicates how the word "substitute" has to be considered. In the present case, notification 27/2002 was substituted by notification No. 27/2008. Therefore, it has to have a retrospective application and the case of the appellant ought to have been considered by the respondent authorities while considering his claim at Ext. P6. He relies upon two decisions. So far as maintainability of the writ petition, he refers to the decision in Panopharam v. Union of India, 2010 KHC 6221 : 2010 (3) KLT 149 : ILR 2010 (2) Ker. 909 and so far as interpretation of the Statute, he relies upon the decision in Government of India v. Indian Tobacco Association, 2005 KHC 1400 : 2005 (187) ELT 162 : 2005 (7) SCC 396 : AIR 2005 SC 3685.

6. It is well settled that when a party has a remedy by way of an appeal under a Statute and if he has not chosen to approach the statutory appellate-authority, the writ jurisdiction cannot be invoked under Article 226 of the Constitution of India. In Panopharam’s case, the challenge was with regard to difference in service tax that came to be imposed. Their Lordships, while considering the question rais