1965 (1) TMI 73 - HC - Customs

Summary

Issues Involved:
1. Non-exhaustion of statutory remedies.
2. Violation of principles of natural justice.
3. Non-compliance with Section 124 of the Customs Act, 1962.
4. Legality of the penalty imposed under Section 112 of the Customs Act, 1962.
5. Definition and scope of abetment under Section 112 of the Customs Act, 1962.

Detailed Analysis:

1. Non-exhaustion of Statutory Remedies:
The petitioner bypassed Section 128 of the Customs Act, 1962, which provides for an appeal to the Central Board of Revenue, and Section 131, which allows for a revision to the Central Government. Despite this, the court entertained the writ petition due to the flagrant disregard of natural justice by the Collector of Central Excise.

2. Violation of Principles of Natural Justice:
The court emphasized that the adjudication by the Collector was vitiated by a flagrant disregard of the essential requirements of natural justice, which is fundamental to the legal system. Despite repeated requests, the petitioner was not supplied with copies of the statements of persons involved in the smuggling, which were used against him. This failure to provide the petitioner with the necessary material to defend himself effectively constituted a denial of a reasonable opportunity to be heard.

3. Non-compliance with Section 124 of the Customs Act, 1962:
Section 124 mandates that no order imposing a penalty shall be made unless the person is given a notice informing him of the grounds, an opportunity to make a representation, and a reasonable opportunity of being heard. The court found that the petitioner was not given a reasonable opportunity of being heard as envisaged by Section 124(c) because the statements used against him were not made available to him.

4. Legality of the Penalty Imposed under Section 112 of the Customs Act, 1962:
The court did not express any opinion on the legality of the penalty under Section 112, including the value of the goods and whether the penalty exceeded five times the value of the goods, as these issues should be agitated in appeal or revision. The determination of disputed questions of fact or law and the consideration of the reliability or sufficiency of evidence are outside the purview of a proceeding under Article 226 of the Constitution.

5. Definition and Scope of Abetment under Section 112 of the Customs Act, 1962:
The court noted that the form of abetment alleged against the petitioner was abetment by conspiracy as contemplated by Section 107 of the Indian Penal Code. The petitioner had a right to know what the other conspirators had said or done, as one conspirator would be liable for the acts of a co-conspirator. The failure to provide the petitioner with the statements of his alleged co-conspirators deprived him of the opportunity to defend himself effectively.

Conclusion:
The court allowed the writ petition and quashed the impugned order of the Collector in so far as it related to the petitioner. The authorities were not precluded from taking fresh action against the petitioner in light of the judgment. The court also noted that the show-cause notice issued to the petitioner was defective as it did not provide sufficient particulars of the wrongful act alleged against him. No order as to costs was made.