2021 (8) TMI 549 - HC - Customs

Maintainability of petition - remedy of appeal not exhausted - sufficient opportunity has not been granted to the petitioner before passing the impugned order - violation of principles of natural justice - HELD THAT - Undoubtedly, the appellate remedy contemplated under the Act is efficacious and able to deal with various possible circumstances and the powers are conferred to issue directions to remand the matter, set aside the order, including the ground of violation of principles of natural justice. When a specific provision is contemplated to deal with the violations of the principles of natural justice, question arises why a writ petition under Article 226 is to be entertained by the High Court. The practice of filing writ petitions on the ground of violation of principles of natural justice is in ascending mode. The aggrieved persons are attempting to thwart the provisions of law by approaching the High Court and with an idea to protract and prolong the issues. High Court cannot encourage such practices of prolonging the issue at the instance of the litigations. Once the remedy provided under the statute is efficacious and capable of dealing with various circumstances including the violation of principles of natural justice, then there is no ground for entertaining a writ petition under Article 226 of the Constitution of India. The tenor of the appeal provisions under Chapter XV of the Act makes it very clear that the Commissioner (Appeals) is empowered to deal with the grounds, which all are not taken in the grounds of appeal by the appellant and deal with the grounds regarding violation of principles of natural justice and many other circumstances. Therefore, this Court is of a strong opinion that the Orders-in-Original passed are to be taken by way of appeal under Section 128 of the Act by an aggrieved person. The petitioner is bound to exhaust the appellate remedy as contemplated under the provisions of the Act, by following the procedures contemplated - Petition dismissed.

Summary

Issues:
1. Challenge to Order-in-Original dated 17.03.2021.
2. Violation of principles of natural justice in passing the impugned order.
3. Dispute regarding opportunities given for personal hearing.
4. Adjudication of factual correctness by the original authority.
5. Failure to exhaust appellate remedy under Section 128 of the Customs Act, 1962.
6. Scope of Section 128 and appellate procedures under the Act.
7. Empowerment of the Commissioner (Appeals) under Section 128A.
8. Filing of writ petitions based on violation of principles of natural justice.
9. Efficacy of the appellate remedy provided under the statute.
10. Encouragement of filing writ petitions before exhausting statutory remedies.

Analysis:
The High Court of Madras considered a writ petition challenging the Order-in-Original dated 17.03.2021. The petitioner contended a violation of natural justice principles as the impugned order was passed without granting sufficient opportunity. The respondents argued that multiple opportunities were provided for personal hearings, which the petitioner failed to attend. The Court noted that factual disputes should be adjudicated by the competent appellate authority and emphasized the importance of exhausting the appellate remedy before approaching the High Court.

The Court delved into the scope of Section 128 of the Customs Act, 1962, which allows appeals to the Commissioner (Appeals) against decisions or orders by lower Customs officers. It highlighted the procedures under Section 128A, empowering the Commissioner (Appeals) to consider additional grounds not initially specified. The Court emphasized the Commissioner's authority to remand matters for fresh adjudication, including cases of natural justice violations.

Furthermore, the judgment emphasized the efficacy of the appellate remedy provided under the Act, stating that the Commissioner (Appeals) has ample powers to address various circumstances, including violations of natural justice. The Court expressed concern over the increasing trend of filing writ petitions based on natural justice violations without exhausting statutory remedies, discouraging such practices and emphasizing the importance of following the appeal provisions under Chapter XV of the Act.

Ultimately, the Court dismissed the writ petition, emphasizing the need for the petitioner to exhaust the appellate remedy as prescribed under the Act before seeking judicial intervention. The judgment highlighted that the statutory remedy provided is comprehensive and should be utilized before resorting to writ petitions on grounds such as violation of natural justice.