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2015 (11) TMI 138 - HC - CustomsDemand of interest of differential duty - Finalization of Provisional assessment - maintainability of writ petition - Imports made prior to insertion of sub-section (3) of Section 18 of the Customs Act, 1962 - Held that - it is the case of the petitioner that the adjudicating authority has not acted in accordance with the provisions of the Customs Act and in defiance of the law laid down by the jurisdictional High Court. On the facts as emerging from the record, and for the reasons that follow, this court is of the view that the availability of an alternative statutory remedy of appeal, would not preclude the court from entertaining this writ petition under Article 226 of the Constitution. The adjudicating authority, in almost every paragraph of the reasoning assigned by it, has reiterated the conclusion that interest is recoverable under section 28 of the Act. It appears that by reiterating that it has arrived at the conclusion that interest is recoverable under section 28 of the Act not less than nine times, the adjudicating authority seems to have wished away the question as regards applicability of the provisions of section 18(3) of the Act and the decisions interpreting the said provision on which reliance had been placed by the petitioner. The revenue officers are bound by the decisions of the higher authorities and cannot refuse to follow the same on the ground that the same is not acceptable to the department. The Supreme Court has also taken care to suggest as to what steps can be taken by the department to secure the interest of the revenue when the department has not accepted the decision of the higher authority, including the High Court. However, it is not open for the adjudicating authority or any other authority to ignore a binding decision of the court on the ground that the department has not accepted the same. The show cause notice has been issued for recovery of interest on differential customs duty as per the provisions of sub-section (3) of section 18 of the Act, and resort has been made to section 28 only for the purpose of recovery of such amount. Under the circumstances, unless it is held that the petitioner is liable to pay interest on the differential duty under section 18(3) of the Act, the question of making any recovery of such interest amount under section 28 of the Customs Act would not arise. The impugned order, which proceeds on the basis that the recovery is only to be made under section 28 of the Customs Act without reference to section 18(3) of the Act, therefore, not being in consonance with the show cause notice issued to the petitioner as well as the relevant statutory provisions, cannot be sustained. Ordinarily it would not exercise powers under Article 226 of the Constitution of India to set aside an order passed by the adjudicating authority when there is an efficacious alternative statutory remedy available under law. However, having regard to the facts of the present case wherein the controversy involved stands concluded by a decision of the jurisdictional High Court in the case of Commissioner of Customs (Preventive) v. Goyal Traders (2011 (8) TMI 720 - Gujarat High Court ), which stands affirmed by the Supreme Court in the case of Jaswal Neco Ltd. v. Commissioner of Customs, Visakhapatnam (2015 (8) TMI 243 - SUPREME COURT), no fruitful purpose would be served by relegating the petitioner, either to the adjudicating authority for deciding the matter afresh, or to the Tribunal, against the order passed by the adjudicating authority. - Impugned order is set aside - Decided in favour of assessee.
Issues Involved:
1. Applicability of Section 18(3) of the Customs Act, 1962 for charging interest on differential duty for provisional assessments made prior to 13.7.2006. 2. Binding nature of High Court decisions on subordinate adjudicating authorities. 3. Maintainability of the writ petition in the presence of an alternative statutory remedy. Detailed Analysis: 1. Applicability of Section 18(3) of the Customs Act, 1962: - The petitioners challenged the order requiring them to pay interest on differential duty under Section 18(3) of the Customs Act for provisional assessments made between December 1999 and February 2005. The petitioners argued that Section 18(3), introduced on 13.7.2006, cannot be applied retrospectively to assessments made before this date. - The petitioners relied on the High Court's decision in Commissioner of Customs (Preventive) v. Goyal Traders, which held that Section 18(3) cannot have retrospective effect. The adjudicating authority ignored this precedent and imposed interest and penalties under Section 114A of the Act. 2. Binding Nature of High Court Decisions: - The petitioners argued that the adjudicating authority was bound by the High Court's decision in Goyal Traders and could not ignore it. They cited the Supreme Court's decision in Union of India v. Kamlakshi Finance Corporation Ltd., which emphasized that revenue officers must follow appellate authority decisions unreservedly. - The court noted that the adjudicating authority's failure to consider the High Court's binding decision amounted to a wilful disregard of the law, potentially constituting civil contempt under Section 2(b) of the Contempt of Courts Act, 1971. 3. Maintainability of the Writ Petition: - The respondent raised a preliminary objection regarding the maintainability of the petition, arguing that the petitioner had an alternative remedy of appeal to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). - The court acknowledged the general rule that writ petitions are not entertained when an alternative remedy exists. However, it also recognized exceptions, such as when the statutory authority acts in defiance of judicial principles or violates natural justice. - The court found that the adjudicating authority had not acted in accordance with the Customs Act and had ignored binding judicial precedents. Given these exceptional circumstances, the court decided to entertain the writ petition. Conclusion: - The High Court quashed the impugned order dated 20.5.2015, passed by the Commissioner, Customs and Central Excise, Rajkot, finding it inconsistent with the statutory provisions and judicial precedents. The court emphasized the importance of judicial discipline and the binding nature of higher court decisions on subordinate authorities. The petition was allowed, and the rule was made absolute with no order as to costs.
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