2016 (10) TMI 262 - HC - Customs

Maintainability - alternative remedy of appeal - invocation with the jurisdiction of the court under Article 226 of the Constitution of India - Held that - the decision in the case of Nivaram Pharma Private Limited vs. The Customs Excise and Gold (Control), Appellate Tribunal, South Regional Bench Madras and Ors 2005 (3) TMI 160 - MADRAS HIGH COURT relied upon where it was held that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative Writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds to do otherwise. Principles of natural justice - cross examination of certain officers and persons in an enquiry - Held that - the decision in the case of Thilagarathinam Match Works Vs. Commissioner of Central Excise, Tirunelveli 2013 (11) TMI 535 - MADRAS HIGH COURT relied upon where the officer, who submitted the test report was not examined by the Department nor he is a witness nor any statement has been recorded from him. In fact, the report can be treated as a public record and the contents of the report are a proof to themselves. In such circumstances, the petitioner cannot seek for cross examination of the officer, who gave the report - the contention raised by the petitioner that they have to be permitted to cross examine the Chemical Examiner of the Central Laboratory is a misconceived plea - rejection of request of cross examination of the petitioner upheld. Appellant entitled to appeal - petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Reclassification and reassessment of imported goods.
2. Denial of cross-examination request.
3. Exhaustion of alternative remedies.

Detailed Analysis:

1. Reclassification and Reassessment of Imported Goods:
The petitioner, a proprietorship concern, and the son of the proprietor challenged the order-in-original dated 29.04.2016, which reclassified imported goods, revised their assessable value, and determined the duty payable. The goods, declared as Carbon Black Feed Stock (CBFS), were reclassified based on test reports from the Central Revenue Control Laboratory (CRCL), which found the samples to be Process Oil and Base Oil. The petitioner argued that the test reports had contrary findings and sought to cross-examine the officer who submitted the test report, claiming the right to cross-examination was denied, infringing principles of natural justice.

2. Denial of Cross-Examination Request:
The petitioner contended that their request to cross-examine the Chemical Examiner who submitted the test report was denied, which they argued was a violation of their rights. The court noted that the Chemical Examiner was not a witness to the proceedings, no statement was recorded from him, and thus, there was no examination in chief to permit cross-examination. The court held that the report should be taken as it is and the petitioner should contest the case based on the findings recorded in the report. The court also noted that the petitioner's request for cross-examination was already rejected by the respondent on 29.01.2016, and this rejection was not challenged by the petitioner.

3. Exhaustion of Alternative Remedies:
The court emphasized that when an alternative and equally efficacious remedy is available, the petitioner should pursue that remedy rather than invoking the special jurisdiction of the High Court under Article 226 of the Constitution of India. The court cited several precedents, including the Supreme Court's decisions in Titaghur Paper Mills Co. Ltd. v. State of Orissa and Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited, which held that statutory remedies must be exhausted before resorting to writ jurisdiction. The court concluded that there were no good and valid reasons for bypassing the appellate remedy provided under the statute.

Conclusion:
The court dismissed the writ petitions, holding that the petitioners must exhaust the alternative remedy of filing an appeal before the Commissioner of Customs and Central Excise (Appeals), Coimbatore. The court rejected the petitioner's contention regarding the right to cross-examine the Chemical Examiner, stating that the request was rightly rejected and not challenged separately. The petitioners were allowed to file an appeal on all other issues except the right to cross-examine the Chemical Examiner. No costs were awarded, and the connected miscellaneous petitions were closed.