Judicial intervention is not available when a party fails to pursue statutory remedies and claims no fundamental right violation.

J U D G M E N T

Petitioner imported used photocopier machines through the Cochin Port some time in 2006. Alleging that the import was in violation of the provisions of the Customs Act , proceedings were initiated by the respondents. The adjudication proceedings, concluded by Ext.P1 order of confiscation, giving liberty to the petitioner, to get the goods released on payment of redemption fine of Rs.3,70,000/- and penalty of Rs.1,90,000/-. Though the goods were got cleared on payment as advised, petitioner filed an appeal against Ext.P1 order before the Commissioner of Customs(Appeals). The appellate authority, by Ext.P2 order, upheld Ext.P1, but, however, the fine and penalty were reduced and was fixed at 10% and 5% respectively of the assessable value of the goods imported. As a result of the appellate order, the petitioner became eligible for refund of Rs.,38,740/-.

2. Accordingly, petitioner filed Ext.P3 refund claim on

08-03-2008 in Form No.102. Along with the refund claim, petitioner produced only copies of the documents required to be produced. They were thereupon issued Ext.P4 deficiency memo requiring them to produce originals of the bill of entry and duty paid challan. Petitioner thereupon submitted Ext.P6, an indemnity bond. A personal hearing was allowed and according to the petitioner, their Custom House Agent represented them before the adjudication officer. During the course of the adjudication, they also submitted Ext.P9(2), intimating change of address. Petitioner states that nothing transpired thereafter, as a result of which, Ext.P10 notice was issued on 21-04-2009, demanding refund of the amount claimed, relying on Ext.P11, a judgment rendered by this Court on 26-03-2009. In this writ petition, it is stated that without considering the submissions made or Ext.P11 judgment, respondents handed over a copy of Ext.P12 to the petitioner's Custom House Agent, rejecting the refund claim submitted by the petitioner on the ground that the petitioner failed to produce originals of the documents, supporting their refund claim. It is stated that so far, neither the order is communicated to the petitioner nor were they issued any reply to Ext.P10 notice. It is in these circumstances, this writ petition is filed, challenging Ext.P12 order, rejecting the refund of the claim.

3. Contention raised by the counsel for the petitioner is that the refund of fine and penalty applied for by the petitioner is not a claim covered by Section 27 of the Customs Act and, therefore, the provisions of Customs Refund Application (Form) Regulations, 1995 are inapplicable. It is also their case that in Ext.P11 judgment, this Court had held that refund claims cannot be rejected on technical grounds. Counsel for the petitioner also contended that in Ext.P14, the circular issued by the Government of India, it was clarified that no formal application for refund is necessary and that a simple letter from the person, who made such a deposit would suffice. It is also his contention that there is no statutory requirement, obliging an importer to produce the originals of the documents to support a claim for refund of the fine and penalty.

4. Respondents, on the other hand, contended that the application for refund should be in Form No.102 and that original of the documents specified therein should be produced. According to them, the petitioner did not enclose the original documents and, therefore, their refund claim was rightly rejected by Ext.P12 order. It is further contended that the impugned order, Ext.P12, was issued way back on 24-11- 2008 and even if the case of the petitioner that it was not served on them is accepted, the order was served on their Custom House Agent, who represented the petitioner during the adjudication. It is contended that appeal should have been filed within the period specified in Section 128 of the Customs Act . It is stated that the appeal period expired long ago and cannot be filed at this distance of time and that b