2021 (3) TMI 84 - HC - Customs

Maintainability of petition - availability of alternative remedy of appeal - Violation of principles of natural justice - validity of Order of adjudication passed by the Principal Commissioner of Customs (Prev.) - HELD THAT - This Court is of the view that the bar of alternative remedy does not operate in the event an appellable order is challenged on the ground of jurisdiction and violation of principles of natural justice. This issue in the instant case requires more detailed hearing which can be done only after calling for affidavits. Let affidavit-in-opposition be filed within four weeks from date; reply thereto, if any, within two weeks thereafter. Liberty to mention after eight weeks for inclusion in the list under the heading 'Hearing'.

Summary

Issues:
Challenge to order of adjudication on grounds of jurisdiction and violation of principles of natural justice. Applicability of penalty under Section 112(b)(ii) of the Customs Act, 1962. Availability of alternative remedy under Section 129A of the Customs Act, 1962.

Analysis:
The petitioner challenged an order of adjudication by the Principal Commissioner of Customs, W.B. dated 26th December, 2019, primarily on the basis of lack of jurisdiction and breach of natural justice principles. The petitioner contended that the penalty imposed of ?50,00,000 was excessive, citing Section 112(b)(ii) of the Customs Act, 1962, which limits the penalty to 10% of the total value of confiscated goods. The total value of the goods was determined by the adjudicating authority at ?3,00,08,417, suggesting that the maximum penalty should have been around ?3,00,000 as per the petitioner's interpretation. Additionally, the petitioner referenced a previous judgment to support the argument that the confiscated gold fell under Section 112(b)(ii) and not Section 112(b)(i) of the Act, further contesting the violation of natural justice principles in the impugned order.

The respondent, representing the Union of India, argued that the impugned order was appealable under Section 129A of the Customs Act, 1962. Citing a relevant judgment, the respondent contended that the writ petition should not be entertained due to the availability of an alternative remedy through appeal. Moreover, the respondent highlighted the limitation period of three months for filing an appeal, which could be extended under certain circumstances. The respondent pointed out that the petitioner had exceeded the ordinary limitation period of 90 days by approaching the Court through a writ petition, thereby questioning the petitioner's entitlement to prefer an appeal. Additionally, the respondent mentioned that the judgment in Gopal Saha's case was under appeal in the same Court with a stay order in place.

Upon reviewing the arguments and evidence presented by both parties, the Court determined that the bar of alternative remedy does not apply when challenging an appealable order on grounds of jurisdiction and violation of natural justice principles. The Court acknowledged the complexity of the issues raised and deemed that a more detailed hearing, including the submission of affidavits, was necessary to address the matter effectively. Consequently, the Court directed the filing of an affidavit-in-opposition within four weeks, with a subsequent two-week period for any replies. The Court granted liberty to mention after eight weeks for inclusion in the hearing list, signaling a thorough examination of the case in light of the legal complexities involved.