2018 (10) TMI 225 - HC - Customs

Maintainability of petition - alternative statutory remedy of appeal - fulfillment of conditions and the obligations for export stipulated in the bond - appeallable order under Section 128 of the Customs Act, 1962. Section 128 of the said Act. Held that - Initially, the writ petitioner has to exhaust the remedies provided under the Act. No writ petition can be entertained before exhausting the remedies provided under the Act, other than under exceptional circumstances. The writ petitioner is at liberty to redress his grievances by preferring an appeal before the competent authorities. If the writ petitioner states that he has already fulfilled the export obligations, even then, he is at liberty to pursue an application before the competent authorities for necessary action. However, in respect of the present writ petition, the relief as such sought for to quash the impugned demand notice cannot be granted. Petition dismissed.

Issues Involved:
1. Challenge to the demand notice issued by the Department of Revenue.
2. Fulfillment of conditions and obligations stipulated in the bond by the petitioner.
3. Non-consideration of the petitioner's application by competent authorities.
4. Requirement to exhaust alternative remedies under the Customs Act, 1962 before filing a writ petition.
5. Legal principles regarding separation of powers and judicial review.

Issue-wise Analysis:

1. Challenge to the Demand Notice:
The petitioner challenged the demand notice dated 25.04.2011 issued by the Department of Revenue, Office of the Commissioner of Customs (Export). The petitioner argued that they had fulfilled the conditions and obligations stipulated in the bond and had submitted an application to that effect before the competent authorities, which had not been considered.

2. Fulfillment of Conditions and Obligations:
The petitioner claimed to have fulfilled the export obligations as per the bond executed. However, the court noted that the petitioner did not provide details regarding the fulfillment of these conditions. The respondents contended that the petitioner had not furnished the necessary details to prove the fulfillment of the obligations.

3. Non-consideration of the Petitioner's Application:
The petitioner argued that their application regarding the fulfillment of export obligations had not been considered by the authorities. However, the court observed that the petitioner had not placed the relevant details before the court to substantiate this claim.

4. Requirement to Exhaust Alternative Remedies:
The respondents argued that the demand notice was an appealable order under Section 128 of the Customs Act, 1962, which provides an appeal to the Commissioner (Appeals). The court emphasized that the petitioner must first exhaust the remedies provided under the Act. The court cited principles from previous judgments, stating that writ petitions should not be entertained without exhausting alternative remedies, except in exceptional circumstances where there is gross injustice or violation of fundamental rights.

5. Legal Principles Regarding Separation of Powers and Judicial Review:
The court discussed the principles of separation of powers, emphasizing that the judiciary should not interfere with the statutory powers of competent authorities unless there are valid and substantiated reasons. The court referred to several Supreme Court judgments to elaborate on the doctrine of separation of powers and the necessity of maintaining institutional respect. The court highlighted that the provision of appeal under the statute should not be rendered an empty formality and that the High Courts should ensure that the provisions of appeal are implemented in their true spirit.

Conclusion:
The court concluded that the petitioner should pursue the alternative remedy of filing an appeal before the competent authorities as provided under the Customs Act, 1962. The court dismissed the writ petition, stating that the relief sought to quash the impugned demand notice could not be granted. The court reiterated that writ petitions should only be entertained in exceptional circumstances and that the petitioner is at liberty to pursue their application before the competent authorities for necessary action. Consequently, the writ petition was dismissed with no costs, and the connected miscellaneous petition was closed.

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