2015 (1) TMI 70 - HC - Customs

Demand of differential duty - Violation of principle of natural justice - Personal hearing not granted - Held that - The foundation or the basic requirement of rule of law is that no adverse order is passed and visiting the party like the Petitioners with civil consequences, unless their defence is considered and the parties given an opportunity of hearing. In this case, the requirement of oral hearing has admittedly not been complied with. Merely because after the Petitioners responded the matter was pending for 14 months would not justify taking it up suddenly and disposing it of in the above manner. The authority could have fixed a date of hearing and given advance notice of the same to the Petitioners so as to enable the Petitioners to remain present and put forward its case effectively and properly. That has not been admittedly done. We do not see how a notice to recover the money could have been issued unless that was preceded by an order and in terms of the Act. That the proceedings are quasi-judicial and, therefore, a reasoned order was required to be passed is apparent. We do not find any such order and being passed after hearing the Petitioners. - In the event, the Petitioners deposit a sum of ₹ 5 Crores with the Respondents within a period of eight weeks from the date of receipt of a copy of this order, the Petitioners shall be given a personal hearing and thereafter a reasoned order shall be passed and duly communicated to the Petitioners - Decided conditionally in favour of assesse.

Summary

Issues involved:
Challenging three communications directing payment of sums; Allegations of failure to comply with principles of natural justice in finalizing assessments; Differential duty liability of Rs. 50 Crores imposed; Dispute over entitlement to writ jurisdiction due to pending appeal remedy; Argument on whether Writ Petition should be entertained or dismissed based on Customs Act provisions; Concerns over fairness, equity, and justice in quasi-judicial proceedings; Decision to entertain Writ Petition based on lack of oral hearing compliance; Conditions set for depositing Rs. 5 Crores for personal hearing and reasoned order; Clarification on consequences of default in deposit; Provision for personal hearing and reasoned order within 12 weeks of deposit; Stay on coercive recovery measures for eight weeks; Adjudication order to be independent of Writ Petition outcome; No expression of opinion on show cause notices merits.

Detailed Analysis:
The Writ Petition under Article 226 of the Constitution of India was filed by a Government of Gujarat undertaking challenging three communications directing the payment of certain sums. The Petitioners imported materials during 2005-2008, paying customs duty under provisional assessment. Allegations were made regarding the finalization of assessments in 2010 without complying with natural justice principles, resulting in a differential duty liability of Rs. 50 Crores. The Petitioners argued that the lack of compliance warranted writ jurisdiction due to potential frustration of appeal remedies. The Respondents, however, cited provisions of the Customs Act, 1962, suggesting that all contentions could be addressed through appeals, opposing the Writ Petition's entertainment.

The High Court found that the Writ Petition had been pending since 2013 and decided to exercise writ jurisdiction due to the lack of oral hearing compliance and concerns regarding fairness, equity, and justice in the quasi-judicial process. Emphasizing the importance of proper adjudication, the Court highlighted the necessity of giving parties an opportunity for a hearing before imposing civil consequences. The Court determined that the Writ Petition deserved to be entertained based on the specific circumstances of the case.

The Court issued conditions for the Petitioners to deposit Rs. 5 Crores within eight weeks for a personal hearing and a reasoned order. Failure to comply would result in the loss of benefits under the order, allowing for coercive recovery measures. If the deposit was made, a personal hearing and reasoned order were to be provided within 12 weeks. Coercive measures for recovery were stayed for eight weeks to facilitate the deposit. The Court clarified that the adjudication order would be independent of the Writ Petition outcome and that no opinion was expressed on the merits of the show cause notices, keeping all contentions open for future consideration.