2016 (10) TMI 1089 - HC - Customs

Seizure of 16 MT of dry betel nuts - grievance of petitioner is that despite the order dated 5-11-2015 of this Court in WP(C) No. 329 of 2014, the concerned authority has not considered the preliminary issues and the matter is sought to be taken up for final hearing without the decision of preliminary issues by the competent authority - Held that - The conclusion of the letter dated 10-5-2016, effectively nullifies the decision, if at all taken by the Assistant Commissioner. Moreover, when it had been an admitted position that the adjudication was to be carried out by some other authority who would be competent to deal with the matter, we find it rather unjustified that the preliminary issues were sought to be dealt with by the Assistant Commissioner at all. When we have enquired if any date has been fixed by the competent authority for further proceeding in the matter, learned counsel Mr. N. Mozika, after taking instructions, submits that no further date after 15-9-2016 has been fixed - this writ petition is disposed of at this stage itself with the observations foregoing and with directions that the petitioner shall appear before the concerned Additional Commissioner on 9-11-2016 - petition allowed by way of remand.

Summary

Issues:
1. Competence of Assistant Commissioner to decide preliminary issues.
2. Requirement of decision by competent authority as per court order.
3. Adherence to hierarchy in decision-making process.

Analysis:
1. The petitioner, a betel nut dealer, filed a writ petition stating that despite a previous court order, the concerned authority had not addressed the preliminary issues before moving to final hearing. The Assistant Commissioner of Customs responded to the petitioner's counsel, indicating a decision on preliminary issues, but mentioned that the speaking order would be issued by the competent authority, which the petitioner argued was the Additional Commissioner, not the Assistant Commissioner.

2. The court noted the importance of the order dated 5-11-2015, which directed that all preliminary issues raised should be considered by the competent authority before any decision on merits. The court found it unjustified that the Assistant Commissioner attempted to address the preliminary issues when it was clear that the adjudication was to be done by the competent authority, as per the court order. The decision on preliminary issues was deemed necessary before deciding on the merits, and it was emphasized that all decisions should be made by the competent authority.

3. The court highlighted that the letter from the Assistant Commissioner, dated 10-5-2016, could only be seen as an opinion and not a considered decision on the preliminary issues as required by the court order. It was reiterated that the competent authority, specifically the Additional Commissioner, should handle the matter on merits if needed. The court directed the petitioner to appear before the Additional Commissioner for a hearing on the preliminary issues before proceeding to the merits of the case, emphasizing adherence to the hierarchy in decision-making and the need for decisions to be made by the appropriate authority.