2016 (12) TMI 1433 - HC - Customs

Maintainability of petition - Confiscation of 6452 grams of gold - Held that - whether absolutely prohibited or banned items in respect of which Parliament s intent is to be gathered should be seen after an overall consideration of the provisions of the Act as well as other authorities applicable. In the circumstances that exercise would be best left to be considered by the appropriate appellate authorities. In these circumstances, the court is of the opinion that this petition ought not to be entertained under Article 226 of the Constitution since the importer has an alternative efficacious remedy - It is open to the petitioner to file appeal to the Commissioner (Appeals) - petition dismissed as not maintainable.

Summary

Issues:
Challenge to order levying customs duty penalty and confiscation of gold under Customs Act, imposition of penalty under different sections, interpretation of Explanation 3 to Section 28 (11) of the Customs Act, jurisdiction of customs authorities post deposit of duty and penalty, availability of alternative remedies, dismissal of writ petition under Article 226 of the Constitution, suggestion to file appeal to Commissioner (Appeals) within two weeks.

Analysis:
The petitioner challenged an order dated 18.07.2016 where the additional commissioner imposed customs duty penalty and directed confiscation of gold under various sections of the Customs Act, along with a penalty under Section 112 & 114AA. The gold was seized upon arrival from UAE, and after depositing the customs duty, the petitioner moved the Customs and Excise Settlement Commission. The settlement was set aside by a writ petition, leading to the petitioner facing adjudication of the show cause notice. The petitioner contended that post the introduction of Explanation 3 to Section 28 (11) of the Customs Act and depositing the duty and penalty within the specified time, the customs authorities lost jurisdiction. However, the court noted that the option of confiscation is always available to the revenue, especially in cases of short levy or misdeclaration, which are expressly referred to in the amendment. The court emphasized that a liberal interpretation could have adverse effects on revenue, and the matter should be left for appellate authorities to consider. Consequently, the court dismissed the petition under Article 226 of the Constitution, citing the availability of an alternative efficacious remedy through appeal to the Commissioner (Appeals).

The court highlighted that the petitioner could file an appeal to the Commissioner (Appeals) within two weeks, despite the proceedings being time-barred. The court suggested that the appeal should be considered on its merits rather than rejected on the grounds of delay. This decision aimed to ensure that the petitioner's case is evaluated fairly and not dismissed solely based on procedural timelines. The judgment emphasized the importance of allowing parties to pursue their cases through proper appellate channels, maintaining a balance between procedural requirements and substantive justice.