2021 (8) TMI 831 - HC - Customs

Smuggling - gold bars of foreign origin - The learned Single Bench, by order dated 11.06.2019, disposed of the writ petition with an observation that the respondent-writ petitioner can be granted an opportunity to cross examine three witnesses - HELD THAT - The process of adjudication is over and the order dated 29.04.2016 has been passed by the second appellant and it has become final as against nine others, as it is the respondent alone, who had filed an appeal under Section 129(A) of the 1962 Act before the first appellant. The said appeal has also been dismissed on merits and on doing so, the first appellant has also confirmed the order passed by the second appellant upholding the decision to deny cross examination. The question of maintainability of the writ petition, though specifically raised by the appellant-Revenue before the learned Writ Court, has not been considered. Had the appellant filed the appeal before the Tribunal on the date when he filed the writ petition, i.e., on 27th February, 2017, it would have been time barred. Though a prayer for condonation of delay could have been made before the Tribunal. In any event, if it appears that the respondent having lost out on time to avail the statutory remedy, seeks to bypass the same and file a writ petition, the Courts would not entertain such a petition and will come to the conclusion that the reason for bypassing the statutory appellate remedy is because the appeal cannot be maintained at that point of time. Decided in favor of revenue - Appeal allowed.

Summary

Issues Involved:
1. Maintainability of the writ petition.
2. Denial of cross-examination of witnesses.
3. Availability and efficacy of alternate remedy.

Detailed Analysis:

1. Maintainability of the Writ Petition:
The respondent filed a writ petition challenging the Order-in-Appeal dated 29.09.2016 and sought a direction for fresh adjudication after permitting cross-examination of certain witnesses. The appellants argued that the writ petition was not maintainable as the respondent had an alternate remedy of filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal). The Court noted that the appeal to the Tribunal should have been filed within three months from the date of communication of the order, which was 20.10.2016. Therefore, the appeal should have been filed by 19.01.2017. The respondent, however, filed the writ petition on 27.02.2017, bypassing the statutory appellate remedy. The Court emphasized that the Tribunal is the last authority to give a conclusive finding on facts and that the writ petition should not have been entertained, especially when the statutory period for filing an appeal had lapsed.

2. Denial of Cross-Examination of Witnesses:
The respondent's request for cross-examination of three witnesses was a central issue. The second appellant had denied this request, stating that cross-examination is not mandatory, relying on the Supreme Court's decision in Kanungo & Co. vs. Collector of Customs. The respondent argued that cross-examination should have been permitted under Section 138B of the Customs Act, 1962. The Court examined the facts and found that the three witnesses had not retracted their statements given under Section 108 of the Act, which were voluntary and binding. The Court concluded that the request for cross-examination appeared to be a tactic to delay the proceedings. The Court upheld the findings of the adjudicating authority and the first appellant, confirming that there was no violation of natural justice in denying the cross-examination.

3. Availability and Efficacy of Alternate Remedy:
The respondent contended that the remedy before the Tribunal was illusory and not efficacious. The Court rejected this argument, stating that the Tribunal is capable of re-appreciating facts and taking decisions on both facts and law. The Court emphasized that the Tribunal is an effective and efficacious remedy, and the respondent should have availed it. The Court also noted that the writ petition was filed to bypass the statutory appellate remedy, which was not justified.

Conclusion:
The Court allowed the appeal, set aside the order passed in the writ petition, and confirmed the findings of the first and second appellants regarding the denial of cross-examination. The Court left it open for the respondent to prefer an appeal to the Tribunal on other issues, if so advised. The period from 27.02.2017 till the receipt of the certified copy of the judgment was excluded for computing the period of limitation for filing the appeal to the Tribunal.