2023 (8) TMI 1369 - HC - Customs

Refund of amount collected towards customs duty alongwith interest - alleged diversion of 25 kgs of duty free gold purchased by the petitioner from respondent No. 4 without payment of customs duty - delay occurred on the part of the petitioner in assailing the impugned order dated 12.02.2020. Refund claim - HELD THAT - At the first instance, what is to be seen is that the petitioner had not challenged the show cause notice that was issued on 31.07.2017. At the same time, the petitioner had submitted his explanation to the said show cause notice after more than around fifteen (15) months i.e. on 08.11.2018. The authorities concerned, vide order dated 12.02.2020, passed the final order holding that the petitioner had to make payment of Rs. 73,52,935/- towards customs duty on 25 kgs of duty free gold, which was diverted by the petitioner in terms of Section 28 of the Customs Act. In addition, it was also ordered that the petitioner shall be liable to pay interest in terms of Section 28AA of the Customs Act and the interest stood quantified at Rs. 3,26,547/-. The learned counsel produced before this Court a writ petition of similar nature involving the petitioner himself, being filed by the respondent No. 4 herein i.e. M/s. Metals and Minerals Trading Corporation (MMTC Limited) 2023 (5) TMI 22 - TELANGANA HIGH COURT , which the Division Bench of this Court, by its order dated 25.04.2023 being not inclined to entertain and the same was dismissed on the ground that the petitioner has an efficacious alternative remedy. Once when the Division Bench of this High Court in the dispute between the same parties has taken a view that the impugned order being an appealable order, the writ petition would not be maintainable and this Court is inclined to take the same view of the writ petition being not maintainable. Inordinate delay that has occurred on the part of the petitioner in assailing the impugned order - HELD THAT - Though the impugned order is the one which was passed on 12.02.2020, the present writ petition has been filed only on 21.06.2023 i.e. after more than three (3) years time - the impugned order does not warrant interference at this stage invoking the writ jurisdiction, firstly on the ground that the petition has been preferred with an inordinate delay, though the learned counsel for the petitioner has tried to give explanation for the delay caused, but the explanation so provided does not find force as there were ample opportunities available to the petitioner to have approached the competent Court of law for redressal of the grievance that he had. This Court is also not inclined to entertain the same for the reason that under the similar set of facts between the same parties, involving the petitioner himself, having not being entertained by the Division Bench of this Court on the ground that the appeal is an appealable order and the petitioner s liberty to assail the same stood reserved. The present writ petition deserves to be and is accordingly dismissed.

Summary

Issues involved:
The issues involved in the judgment include challenging the proceedings initiated by the Principal Commissioner of Customs, seeking refund of customs duty and interest, allegations of diversion of duty-free gold, issuance of show cause notice, final order passed by the authorities, and the maintainability of the writ petition.

Proceedings Initiated by Principal Commissioner of Customs:
The writ petition sought to quash the proceedings initiated by the Principal Commissioner of Customs, Hyderabad Customs Commissionerate, for refund of customs duty and interest. The petitioner, engaged in the business of gold and gold jewellery, alleged that the authorities had demanded payment for alleged diversion of duty-free gold purchased from a specific agency. The authorities passed a final order directing the petitioner to pay customs duty, interest, and penalties, which the petitioner challenged in the writ petition.

Allegations of Diversion of Duty-Free Gold:
The petitioner was accused of diverting duty-free gold purchased from a nominated agency for export but allegedly selling it in the local market instead. The authorities issued a show cause notice regarding the diversion of 25 kgs of gold and subsequent sale in the local market, leading to the petitioner voluntarily paying the customs duty amount. The authorities also imposed penalties and ordered confiscation of the gold allegedly diverted.

Challenging the Orders and Maintainability of Writ Petition:
The petitioner challenged the orders on various grounds, including lack of jurisdiction, improper application of mind, mechanical passing of the order, and violation of rules and limitations. The petitioner contended that the actions of the authorities were without proper justification and explanation. The petitioner cited Supreme Court judgments to support the writ petition's maintainability despite statutory remedies of appeal being available.

Maintainability of Writ Petition and Delay:
The respondent argued against the maintainability of the writ petition, citing alternative statutory remedies available to the petitioner. The court considered the inordinate delay in filing the writ petition, which was lodged more than three years after the impugned order. The court noted that the delay was unjustified, despite explanations provided by the petitioner, and also referenced a previous case where a similar petition was dismissed due to an alternative remedy being available.

Judgment and Dismissal of Writ Petition:
The court dismissed the writ petition, citing reasons such as inordinate delay, lack of merit in the petitioner's explanations for the delay, and the availability of alternative remedies. The court highlighted that a similar case involving the same parties had been dismissed previously on the grounds of appealability. Consequently, the writ petition was deemed not maintainable, and costs were not awarded.