2016 (11) TMI 1637 - HC - Customs

Maintainability of petition - alternative remedy - Absolute confiscation - Sony brand LED TV sets - imposition of penalty - quantity of TV sets imported is admittedly a larger quantity - whether the petitioner by placing reliance on the BIS Certificate, dated 13.09.2013, would seek for release of the TV sets? - HELD THAT - This issue is not primarily a question of law, but is the maximum question of fact and law. Therefore, to adjudicate the correctness of the impugned order, necessarily the disputed question of facts have to be gone into and this cannot be done in a Writ Petition, more so, when the petitioner has an alternative remedy of an Appeal as against the impugned order. This Court is not inclined to interfere with the order on the ground that the petitioner has an alternative remedy by way of appeal - while rejecting the prayer made by the petitioner and holding that the Writ Petition is not maintainable, liberty is granted to the petitioner to file an Appeal before the Commissioner of Appeals and if an Appeal is filed within a period of 30 days from the date of receipt of a copy of this order - Petition dismissed.

Summary

Issues: Seizure and confiscation of goods, imposition of penalty under various provisions of the Act, release of goods, compliance with court directions, alternative remedy of appeal.

Analysis:
1. The judgment pertains to an order-in-original where the respondent seized gold, confiscated 200 Sony brand LED TV sets, and imposed penalties under the Act. The petitioner previously sought a Writ of Mandamus to release the TV sets, with the court directing the petitioner to furnish a bank guarantee for duty assessment. However, the petitioner failed to comply with all conditions, leading to the impugned assessment order.

2. The petitioner argued that they provided a BIS Certificate during the bill of entry filing, indicating the TV sets were ordered from Malaysia. However, the petitioner was not directly associated with the foreign manufacturer, importer, or representative, raising questions about the importation. The court noted the issue involves a mix of fact and law, unsuitable for resolution in a Writ Petition, suggesting the petitioner pursue an appeal instead.

3. The court declined to interfere with the order, citing the availability of an alternative remedy through an appeal. The decision was based on the maintainability of the Writ Petition, without delving into the merits of the petitioner's contentions or the department's defense. The petitioner was granted liberty to file an appeal within 30 days, with instructions for the Appellate Authority not to be influenced by the current order while deciding the appeal.

4. Consequently, the Writ Petition was dismissed without costs, allowing the petitioner to pursue the appeal route. The judgment emphasized the importance of following due process and exhausting available legal remedies, ensuring a fair and comprehensive review of the disputed issues.