2021 (3) TMI 184 - HC - Customs

Maintainability of appeal - appeal dismissed on the ground that the appellant has no justifiable reasons to bypass the alternative remedy available under the provisions of the Customs Act before the Customs, Excise and Service Tax Appellate Tribunal - HELD THAT - The issues raised in the writ petition are not purely questions of law, but mixed questions of fact, which would require a process of adjudication. Such matters cannot be decided by a Writ Court based on affidavits. Therefore, we do agree with the ultimate conclusion of the learned Writ Court that the appellant should avail the alternate remedy available under the Act. The Writ Appeal stands dismissed and the appellants are granted 60 days time from the date of receipt of a copy of this judgment to file an appeal before the Commissioner of Customs (Appeals) and if the same is filed, the Commissioner of Customs (Appeals) shall entertain the appeal, without reference to the limitation as the writ petition was filed before this Court in the year 2016, which is well within the period of limitation, had the appellants filed appeals before the Commissioner of Customs (Appeals) at the relevant point of time.

Issues:
Challenge to order denying exemption benefit under Customs Act, jurisdiction of Writ Court to entertain the case despite alternate remedy available, discretion of Writ Court in exercising jurisdiction.

Analysis:

1. Challenge to Order Denying Exemption Benefit under Customs Act:
The writ petition challenged an order denying exemption benefit claimed by the appellants under Customs Notification No.85/2004-Cus. The respondent ordered the demand of differential duty, recovery of interest, and held the imported goods liable for confiscation under Sections 111(m) and 111(o) of the Customs Act, 1962. The appellants argued that the burden to prove mis-statement or fraud lies with the Department, emphasizing lack of evidence for the allegations. Reference was made to Interim Rules of Origin for Preferential Tariff Concessions for Trade between India and Thailand, as well as a Sample Certificate of Origin and the appellant's reply to the Show Cause Notice.

2. Jurisdiction of Writ Court to Entertain the Case Despite Alternate Remedy Available:
The Writ Court dismissed the writ petition, citing the availability of an efficient alternate remedy through an appeal before the Commissioner of Appeals. The Court referred to the decision in Assistant Collector of Central Excise Vs. Dunlop India Limited, emphasizing that discretionary powers under the writ jurisdiction cannot be exercised without justifiable reasons to bypass the statutory remedy. However, the appellants argued that the Writ Court should have considered that the initiation of action on the impugned consignments was legally barred and based on conjectures. The High Court, citing previous judgments, clarified that the self-imposed rule restricting the exercise of writ jurisdiction despite an alternate remedy is not absolute.

3. Discretion of Writ Court in Exercising Jurisdiction:
The High Court highlighted that the issues raised in the writ petition involved mixed questions of fact requiring adjudication beyond affidavits. While acknowledging the legal position that an alternate remedy exists, the Court held that a writ could have been maintained by the appellant based on the grounds presented. Ultimately, the Court agreed with the Writ Court's decision that the appellant should avail the alternative remedy under the Act. The Writ Appeal was dismissed, granting the appellants 60 days to file an appeal before the Commissioner of Customs (Appeals) without reference to the limitation period.

In conclusion, the judgment addressed the challenge to the order denying exemption benefit under the Customs Act, discussed the jurisdiction of the Writ Court to entertain the case despite the availability of an alternate remedy, and analyzed the discretion of the Writ Court in exercising jurisdiction based on the legal principles and previous judgments cited.

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