2021 (11) TMI 1064 - HC - Customs

Invocation of Writ Jurisdiction - invocation on the ground that the impugned order has been passed by an officer who lacks jurisdiction - breach of principles of natural justice - HELD THAT - It is not a case where the petitioners were never afforded an opportunity of hearing. From para 9 (nine) of the writ petition, it is found that notice was issued to the petitioners but their grievance is that time given to appear and represent their case was not sufficient. A distinction has to be made between a case where an order is passed without notice / without opportunity and a case where an order is passed without proper notice / without reasonable opportunity . Since the case of the petitioner does not fall within the first category, it is not a clear case of breach of the audi alteram partem rule. The other point raised by Mr. Pathak is that the reply to the show-cause notice has not been dealt with appropriately - HELD THAT - We do not see reason to hold that this, by itself, would constitute violation of principles of natural justice so as to derail the procedure prescribed by the Act for redressal of grievances against an order passed by the adjudicating authority. There are no reason to entertain this writ petition - petition dismissed.

Summary

Issues Involved:
Challenge to order under Customs Act, 1962 for lack of jurisdiction and breach of natural justice; Invocation of writ jurisdiction; Adequacy of notice and opportunity of hearing; Dealing with reply to show-cause notice appropriately; Violation of principles of natural justice; Alternative remedy under the Act; Dismissal of writ petition with liberty to pursue appellate remedy.

Analysis:

1. Lack of Jurisdiction and Breach of Natural Justice: The petitioner challenged an order under the Customs Act, 1962, citing lack of jurisdiction and breach of natural justice. The Court noted that while an appeal was available against the order, the writ jurisdiction was invoked on grounds of jurisdictional issues and alleged breach of natural justice. The petitioner's failure to object to the officer's jurisdiction during the initial proceedings was deemed fatal, as raising the jurisdictional point for the first time before the Court after the final order was passed was not permissible.

2. Adequacy of Notice and Opportunity of Hearing: The Court differentiated between cases where orders were passed without notice or opportunity and those where orders were passed without proper notice or reasonable opportunity. In this case, the petitioners were issued a notice, but their contention was that the time given to present their case was insufficient. The Court held that this did not amount to a clear breach of the audi alteram partem rule, as the petitioners were not denied an opportunity to be heard.

3. Dealing with Reply to Show-Cause Notice: The petitioner argued that their reply to the show-cause notice was not appropriately considered. The Court held that this, by itself, did not constitute a violation of natural justice sufficient to derail the statutory procedure for redressal of grievances against orders by the adjudicating authority under the Act.

4. Alternative Remedy and Dismissal of Writ Petition: Considering the availability of an alternative remedy under the Act, the Court dismissed the writ petition without costs. However, the petitioners were granted liberty to pursue the appellate remedy in accordance with the law. The Court also allowed the petitioners to seek exemption from the laws of limitation due to the pendency of the writ petition.

5. Dismissal of Second Writ Petition: The Court dismissed a second writ petition, noting that the grievance raised was covered by the order passed in the first writ petition. The second petition was dismissed with similar observations and liberty to pursue further remedies.

This detailed analysis covers the various issues raised in the judgment, providing a comprehensive understanding of the Court's reasoning and decision in each aspect of the case.