2021 (6) TMI 435 - HC - Customs

Maintainability of appeal - fulfilment of conditions for maintaining the appeal - rejection of petition mainly on the ground that the procedures as contemplated are not followed and the Principles of Natural Justice has been violated - principles of natural justice - HELD THAT - This Court is of the considered opinion that statutory appellate remedy provided under the Act is a valuable right conferred on a litigant - such a right cannot be dispensed with in a routine manner, even by the High Court under Article 226 of the Constitution of India. Facilitating an aggrieved person to prefer an appeal, has got a definite meaning and an opportunity is provided to consider the original documents and the grounds raised by the aggrieved parties. Therefore, the appellate remedy contemplated under the statute cannot be dispensed with in a routine manner in a writ proceedings. In all such cases, the appeal remedy is to be exhausted by the aggrieved person by following the procedures as contemplated. The appellate authorities are competent to grant even the interim orders and consider the appeal on merits by affording opportunity to all the parties. In the present case, the impugned order itself reveals that the petitioner, if aggrieved, has to prefer an appeal before the Commissioner of Customs (Appeals), Custom House, 5th Floor, Chennai 600 001, under Section 128(1) of the Customs Act, 1962, within 60 days of communication of the impugned order. The petitioner, instead of preferring an appeal, has chosen to move the present writ petition and such an approach cannot be appreciated by this Court, in view of the fact that the Appellate authority namely, the Commissioner of Customs (Appeals) is competent to deal with all the legal grounds raised in the present writ petition by the petitioner - Even legal practitioners are allowed before the Commissioner of Customs (Appeals) and therefore, the interest of the litigants are to be protected and their representatives or learned counsels can contest the appeal by following the procedures as contemplated. Petition dismissed.

Summary

Issues Involved:
1. Violation of Principles of Natural Justice
2. Availability and necessity of statutory appellate remedy
3. Jurisdiction of High Court under Article 226 of the Constitution of India

Detailed Analysis:

Violation of Principles of Natural Justice:
The petitioner contended that the impugned order was passed without issuing a show cause notice, thus violating the Principles of Natural Justice. The second respondent, however, claimed that a show cause notice dated 10.03.2017 had indeed been issued. The petitioner argued that they were not given an opportunity to present their case, making the order unilateral and necessitating the writ petition. The respondents countered this by stating that the show cause notice was referenced in the proceedings dated 01.03.2021, implying that the petitioner's claim was based on incorrect facts.

Availability and Necessity of Statutory Appellate Remedy:
The court emphasized that the statutory appellate remedy provided under the Customs Act, 1962, is a valuable right conferred on a litigant and cannot be dispensed with routinely by the High Court under Article 226 of the Constitution of India. The impugned order itself indicated that an appeal could be filed before the Commissioner of Customs (Appeals) within 60 days. The petitioner, instead of availing this remedy, chose to file a writ petition, which the court did not appreciate. The court noted that the appellate authorities are competent to grant interim orders and consider appeals on merits, thus protecting the interest of litigants.

Jurisdiction of High Court under Article 226 of the Constitution of India:
The court reiterated that the High Court should not entertain writ petitions in the presence of an available appellate remedy. The court cited previous judgments to support the view that the appellate remedy must be exhausted in all circumstances, except under extraordinary situations to mitigate injustice. The court also mentioned that the High Court cannot adjudicate on facts and merits with reference to documents and evidences, which is the domain of the appellate authorities. The court highlighted the legislative intention behind providing appellate remedies and stressed that institutional respect and the hierarchy of institutions must be maintained.

Conclusion:
The court concluded that the petitioner is bound to exhaust the appellate remedy provided under Sections 128 and 129 of the Customs Act, 1962. The petitioner was directed to file an appeal within 60 days from the date of receipt of the order, and the appellate authority was instructed to entertain the appeal without reference to the period of limitation, adjudicating the matter on merits and in accordance with law. The writ petition was dismissed, and no costs were imposed. Consequently, all connected miscellaneous petitions were also closed.