2016 (6) TMI 351 - HC - Customs

Seeking unconditional release of absolutely confiscated goods - Seizure of goods not having been declared in the bill of entry - attempted to clear the undeclared goods by way of concealment at the rear portion of the container - Non-issuance of SCN to the petitioner within six months from the date of actual detention or atleast the date of examination and sealing of the goods - Section 110 (2) of the Customs Act, 1962. Held that - the goods were seized under the mahazar dated 03.12.2013 and the time was extended by the Commissioner of Customs till 03.12.2014, for the issuance of show cause notice. Therefore, it cannot be said that the extension of time by the authority is against the provisions of the Customs Act. The respondents rightly contended that without exhausting the appeal remedy provided under sections 128 and 129A of the Customs Act, 1962, the petitioner has approached this court by way of writ petitions challenging the impugned orders. When specific provisions are available to the petitioner for filing an appeal against the impugned orders under sections 128 and 129A of the Customs Act, 1962, without exhausting the alternative remedy, the petitioner cannot approach this court by way of writ petitions. It could be seen that opportunity of personal hearing was also given to the petitioner before passing the impugned orders. Therefore, when there is no violation of principles of natural justice and when an alternative remedy by way of appeal is available to the petitioner, the writ petitions cannot be entertained. In these circumstances, it is open to the petitioner to challenge the impugned orders by way of an appeal before the Commissioner (Appeals), in accordance with law. - Petition dismissed

Summary

Issues:
1. Unconditional release of goods confiscated under Bill of Entry dated 22.10.2013.
2. Provisional release of goods confiscated absolutely contrary to law.
3. Extension of time for issuance of show cause notice under Customs Act.
4. Availability of appeal remedy before approaching the High Court.

Issue 1: Unconditional release of goods confiscated under Bill of Entry dated 22.10.2013.
The petitioner, engaged in importing cosmetics, faced confiscation of goods declared in Bill of Entry dated 22.10.2013. The Customs Authorities seized the goods, alleging non-declaration and concealment. The petitioner contended that the overseas supplier's mistake led to the discrepancy in declared value. Despite seeking unconditional release based on the Customs Act's time limits for issuing show cause notices, the authorities extended the period, leading to the petitioner challenging the order dated 02.06.2014 through a writ petition.

Issue 2: Provisional release of goods confiscated absolutely contrary to law.
The petitioner sought provisional release of the confiscated goods under Bill of Entry dated 22.10.2013. However, the second respondent confirmed the show cause notice proposal without considering the petitioner's submissions. This led to the petitioner filing a writ petition challenging the order dated 09.09.2015, emphasizing the need for provisional release pending adjudication.

Issue 3: Extension of time for issuance of show cause notice under Customs Act.
The respondents argued that the Commissioner of Customs had the authority to extend the time for issuing show cause notices under the Customs Act, citing the mahazar dated 03.12.2013. They contended that the petitioner failed to exhaust appeal remedies before challenging the adjudication order in court, emphasizing the importance of following the statutory appeal process.

Issue 4: Availability of appeal remedy before approaching the High Court.
The court highlighted that the Customs Act provided specific provisions for appealing against impugned orders under sections 128 and 129A. The respondents argued that without exhausting the appeal remedies, the petitioner should not approach the High Court through writ petitions. The court emphasized the importance of following the appeal process and natural justice principles before resorting to writ petitions.

In conclusion, the court dismissed the writ petitions, emphasizing the availability of appeal remedies under the Customs Act and the importance of following the statutory appeal process before approaching the High Court.