2021 (8) TMI 967 - HC - Customs

Maintainability of appeal - availability of alternative remedy - Provisional release of seized goods - Gold Ornaments - section 110A of Customs Act - HELD THAT - The attempt of the Department is to bypass the remedy of an appeal against Ext.P10 and that too when in the appeal preferred by them interim orders have not been obtained as of yet. The extraordinary jurisdiction under Article 226 of the Constitution of India cannot be utilised by a party to a lis to arm themselves with a sword from this Court while their statutory remedies are being pursued unless there are extraordinary circumstances. The claim of the Department that there are extraordinary circumstances based upon the Circular issued on 16.08.2017 though attractive in the initial blush on a deeper analysis not of much substance. Since it is submitted across the Bar that the appeal against Ext.P10 order is pending consideration before the Appellate Tribunal it is not proper to express any opinion on the merits of the issue - Appeal dismissed.

Summary

Issues:
Interim order for release of seized gold ornaments challenged by Customs Department based on a circular restricting release rights - Appeal against interim order - Department's attempt to bypass appeal remedy - Review petition dismissed - Jurisdiction under Article 226 - Extraordinary circumstances - Appeal pending before Appellate Tribunal.

Analysis:
The High Court of Kerala addressed an intra court appeal against an interim order issued by a learned Single Judge directing the release of gold ornaments seized from a shop. The Customs Department, represented by the Assistant Solicitor General, challenged the direction citing a circular that allegedly restricted their right to release seized goods. The ASGI highlighted that a statutory appeal had been filed against the initial order and argued that the interim direction should be set aside to avoid prejudicing the Revenue's interests.

During the hearing, the counsel for the first respondent referred to legal precedents emphasizing that departmental circulars are not binding on assessees, quasi-judicial authorities, or courts. The counsel argued that the Department's reliance on the circular to withhold the release of the goods was legally unfounded. Additionally, it was noted that the interim order implied no serious objection from the Department regarding the release of the goods at that time.

The Court observed that a review petition filed by the Department post the interim order's issuance was dismissed by the learned Single Judge. The Judge had pointed out that challenging the Commissioner of Customs' order through a review petition was not the appropriate course of action, emphasizing the need to pursue the statutory appeal process instead.

Upon a thorough examination of the facts, the Court concluded that the Department's attempt to circumvent the appeal remedy and seek relief through Article 226 of the Constitution was unwarranted. The Court emphasized that such extraordinary jurisdiction should only be invoked in exceptional circumstances, which were not found to exist in this case despite the Department's arguments based on the circular issued in 2017.

Given that the appeal against the initial order was pending before the Appellate Tribunal, the Court refrained from expressing an opinion on the merits of the issue. Consequently, the Court dismissed the appeal, finding no justification to interfere with the interim order considering the circumstances prevailing at the time of its issuance.