Page 134 - ELT_3rd_1st May 2020_Vol 372_Part

356 EXCISE LAW TIMES [ Vol. 372
jurisdiction or in excess of jurisdiction or acted in flagrant disregard of the law or the
rules of procedure or have acted in violation to the principles of natural justice and there-
by resulting into failure of justice”. It is further observed therein that “certiorari ju-
risdiction may be exercised when the error if not corrected at the very moment may be-
come incapable of correction at the later stage and refusal to intervene would result trav-
esty of justice”. It is further observed that “such jurisdiction of writ of certiorari
should not be converted into the Court of appeal or indulge into re-appreciation of the
evidence or evaluation of the evidence or correction of the errors were two views are pos-
sible. The High Court while exercising the jurisdiction of writ of certiorari may annul or
set aside the act or set aside the proceeding, but cannot substitute its own decision in
question thereof”.
16. In the case of Mangali Impex Ltd. (supra), while dealing with Section
28(11) of the Customs Act, 1962, the Delhi High Court has observed that “the de-
partment cannot seek to rely upon the said section for the proposition that it was author-
ised of customs, DRI, DGCEI etc. to exercise powers in relation to non-levy, short-levy or
erroneous refund for period prior to 8-4-2011”. It is also observed regarding valida-
tion legislation that “the legislature has power to remove defect pointed out by Court
which examines and pronounces on constitutional validity of statute”.
17. In the case of Deepak Bajaj (supra), which also deals with Section
28(11) of the Customs Act, 1962, the judgment of the Delhi High Court has been
referred to and it is observed that the judgment of the Delhi High Court has been
stayed by the Supreme Court in Special Leave Petition (C) No. 20453 of 2016
[2016 (339) E.L.T. A49 (S.C.)]. In the said decision, it has been held and observed
in para-5 as under :-
‘‘5. No doubt, as rightly contended by the learned counsel appearing for
the petitioner, the grant of an interim order of stay in a pending appeal be-
fore the Apex Court does not amount to any declaration of law and that it is
only binding upon the parties to the said proceedings. It also does not de-
stroy the precedential value of the judgment of the High Court. Because,
while granting the interim order, the Apex Court had no occasion to lay
down any proposition of law inconsistent with the one declared by the
High Court”.
18. In the case of Commissioner of Customs v. T.L. Verma (supra), it has
been observed that the Supreme Court has stayed operation of the judgment of
the Delhi High Court in Mangali Impex Limited (supra).
19. At this stage, it is worthwhile to refer to the Foreign Trade Policy.
Chapter 4 of the Policy provides for duty exemption and remission scheme, es-
pecially para 4.1 and 4.1.3 which reads as under :-
“4.1 Duty Exemption and Remission Schemes -
Duty exemption schemes enable duty free import of inputs required for ex-
port production. Duty Exemption Schemes consist of (a) Advance Autorisa-
tion Scheme and (b) Duty Free Import Authorisation (DFIA) scheme. A Du-
ty Remission Scheme enables post export replenishment/remission of duty
on inputs used in export product. Duty remission schemes consist of (a)
Duty Entitlement Passbook (DEPB) Scheme and (b) Duty Drawback (DBK)
Scheme.
4.1.3 Advance Authorisation
An Advance Authorisation is issued to allow duty free import of inputs,
which are physically incorporated in export product (making normal al-
lowance for wastage). In addition, fuel, oil, energy, catalysts which are con-
EXCISE LAW TIMES  1st May 2020  134