2016 (1) TMI 692 - HC - Customs

Levy of penalty on the petitioner carrying gold in the form of two gold bars and gold coins - they were passing through Green Channel with his hand bag - the petitioner preferred an appeal before the CESTAT in C/40694/2015 and the same is pending consideration. In the meantime, the petitioner has filed an application in No.C/EH/40307/2015, which was allowed and the appeal was posted for hearing on 10.09.2015. It is the contention of the learned counsel for the petitioner, seeking cross examination of certain witnesses is pending consideration before the Commissioner of Appeals, the same may be directed to be disposed of within a time frame. Held that - Admittedly, the Commissioner of Appeals dismissed the appeal filed by the petitioner and as against the same, further appeal before the CESTAT has been filed. Hence, the impugned order cannot be questioned in the writ petition. Any further relief to be sought for is to be placed only before the CESTAT only. Since the appeal itself is rejected by the Commissioner of Appeals, the question of cross-examination to be considered by the Commissioner of Appeal at this stage cannot be countenanced. - Petition dismissed.

Summary

Issues:
Challenge to confiscation and penalty under Customs Act, 1962; Request for cross-examination of witnesses; Maintainability of writ petition post-appeal dismissal.

Analysis:
The writ petition sought to quash an order of absolute confiscation and penalty imposed on the petitioner for carrying gold. The petitioner's appeal before the Commissioner of Customs (Appeals-I) was rejected, leading to this writ petition. The main contention was the request for cross-examination of witnesses, which the petitioner claimed was wrongly rejected by the Commissioner of Appeals. The petitioner had also filed an appeal before CESTAT, which was pending. The petitioner argued that the Commissioner of Appeal had no authority to dismiss the cross-examination request, citing a violation of Rule 5 of the Customs Act, 1962.

The Standing Counsel argued that the writ petition was not maintainable as the petitioner had already challenged the impugned order before the appellate authority. The High Court, after hearing both sides, noted that the appeal before the Commissioner of Appeals had been dismissed, and an appeal before CESTAT was pending. Consequently, the High Court held that the impugned order could not be questioned in the writ petition. Any further relief had to be sought before CESTAT, as the appeal had already been rejected by the Commissioner of Appeals. The High Court directed CESTAT to hear the appeal and dispose of it within eight weeks, providing the petitioner with a fair opportunity.

In conclusion, the High Court disposed of the writ petition, emphasizing that the appeal before CESTAT should be the appropriate forum for seeking relief post the dismissal by the Commissioner of Appeals. The Court directed CESTAT to expedite the hearing and disposal of the appeal within a specified timeframe, ensuring due process for the petitioner.