2021 (2) TMI 617 - HC - Customs

Smuggling - Jewellery - competency of new officer to sit as a Revisionary Authority - HELD THAT - There is no representation on behalf of the 2nd respondent. The learned counsel for the 1st respondent is also unable to confirm as to whether the officer who passed the impugned order was incompetent or not. Therefore, without expressing any opinion on the merits of the case, the impugned order is set aside and the case is remitted back to the 2nd respondent to pass a fresh order after hearing the petitioner with a caveat. If the impugned order passed by the 2nd respondent was passed by an officer having appropriate qualification and competency, the 2nd respondent shall pass an order confirming the impugned order in the remand proceedings without any further deliberation - if the 2nd respondent who passed the impugned order had lacked the competency, the case shall be re-heard on merits by the second respondent with a person having competence. Petition allowed.

Summary

Issues Involved:
Challenge to impugned order permitting re-export of jewelry, competency of the officer passing the impugned order, setting aside of the impugned order, remitting the case back for a fresh order, requirements for passing a new order, representation on behalf of the 2nd respondent, hearing the petitioner and the 1st respondent, impact of officer's competency on the case, considerations for re-hearing the case, pandemic-related hearing arrangements.

Analysis:
The judgment pertains to a writ petition challenging an order allowing re-export of jewelry by the 1st respondent, subject to certain fines and penalties. The petitioner contested the competency of the officer who passed the impugned order, citing previous court decisions. The court referred to a similar case where orders by the same officer acting as the Revisionary Authority were set aside, necessitating a fresh order by a competent officer. Despite lack of representation from the 2nd respondent, the court noted uncertainty regarding the officer's competency and decided to set aside the impugned order, remitting the case back for a fresh order after hearing the petitioner.

The court outlined two scenarios for the fresh order: if the officer was competent, the impugned order should be confirmed without further deliberation; if the officer lacked competency, the case should be re-heard by a competent person. The court emphasized the need for the 1st respondent to be heard during the process, either physically or through video conference due to COVID-19 restrictions. Ultimately, the writ petition was allowed based on the observations made, with no costs incurred, and the connected Miscellaneous Petition was closed.

This judgment highlights the importance of the competency of the officer passing orders in customs matters, ensuring that decisions are made by individuals with the appropriate qualifications. It also underscores the procedural fairness in remitting cases for fresh orders when issues of competency arise, with a focus on providing all parties with the opportunity to present their case effectively, even amidst challenges such as the COVID-19 pandemic.