2016 (9) TMI 1346 - HC - Customs

Constitutional validity of Section 129E of the Customs Act - withdrawal of petition - Held that - it is clarified that while permitting the applicant herein - original petitioner to withdraw the main Special Civil Application with above liberty, we have not specifically restrained the petitioner from challenging the Order-in-Original by preferring the petition under Article 226 of the Constitution of India - it is for the concerned Court to consider whether despite the statutory remedy of appeal before the appellate authority challenging the Order-in-Original, still the Court would like to entertain Special Civil Application in exercise of powers under Article 226 of the Constitution of India or not and/or the petitioner may be relegated to avail alternative statutory remedy available under the Act - petition disposed off.

Summary

Issues:
Clarification of the order dated 8-7-2016 in SCA No. 10744 of 2016 regarding challenging the Order-in-Original under Article 226 of the Constitution of India.

Analysis:
The judgment by the Gujarat High Court, delivered by M.R. Shah and A.S. Supehia, JJ., addresses the application filed by the original petitioner seeking clarification on the order dated 8-7-2016 in SCA No. 10744 of 2016. The petitioner had earlier challenged the constitutional validity of Section 129 of the Customs Act, 1962, along with the Order-in-Original. During the hearing, the petitioner withdrew the challenge to the constitutional validity of Section 129E of the Customs Act and sought permission to withdraw the petition with liberty to challenge the Order-in-Original separately. The Court granted this permission, allowing the petitioner to initiate fresh proceedings against the Order-in-Original before the appropriate forum.

In the order dated 8-7-2016, the Court clarified that it had not restricted the petitioner from challenging the Order-in-Original under Article 226 of the Constitution of India, despite the availability of statutory appeal remedies. The Court emphasized that it is within the discretion of the concerned Court to decide whether to entertain a Special Civil Application under Article 226 or direct the petitioner to pursue alternative statutory remedies provided under the Customs Act. The judgment highlights the importance of judicial discretion in determining the appropriate course of action for challenging administrative orders like the Order-in-Original.

Ultimately, the Court disposed of the present application, affirming the petitioner's right to challenge the Order-in-Original under Article 226 of the Constitution of India, subject to the discretion of the relevant Court to decide on the appropriateness of entertaining such a petition alongside statutory appeal mechanisms. The judgment underscores the significance of judicial review and the flexibility of legal remedies available to aggrieved parties in challenging administrative decisions under the Customs Act.