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2021 (9) TMI 48 - HC - CustomsMaintainability of petition - availability of appellate remedy, which was not availed of - jurisdiction of officer to issue proceedings - Proper Officer - HELD THAT - Admittedly, the appellate remedy is available and the petitioners have not chosen to file the appeal. Regarding the term 'Proper Officer' who is competent to issue proceedings, this Court considered the principles in the case of M/S. R.K.K.R. STEEL, JOSEPH PHILIP, RAJIV RAJI VERSUS THE CENTRAL BOARD OF EXCISE AND CUSTOMS, THE COMMISSIONER OF CUSTOMS, PORT IMPORT, THE COMMISSIONER OF CUSTOMS, THE ADDITIONAL DIRECTOR GENERAL 2021 (7) TMI 1153 - MADRAS HIGH COURT . In the said judgment, this Court has considered the recent judgment of the Hon'ble Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT wherein, the interpretation for the words 'proper officer' ruled by the Hon'ble Supreme Court in the case of COMMISSIONER OF CUSTOMS VERSUS SAYED ALI 2011 (2) TMI 5 - SUPREME COURT was followed and affirmed - The Hon'ble Supreme Court, by referring to the decision in the case of Syed Ali held that the 'proper officer' is the officer having jurisdiction over the person concerned and therefore, the law regarding the interpretation 'Proper Officer' is settled by the Hon'ble Supreme Court. The petitioners are granted liberty to approach the appellate authority and file an appeal by following the procedures as contemplated and by complying with the conditions to prefer the appeal, within a period of 60 days from the date of receipt of a copy of this order, and in the event of filing of appeal by the writ petitioners within a period of 60 days, such appeal is directed to be entertained without reference to the period of limitation, and the matter has to be adjudicated on merits and in accordance with law and by affording opportunity to the parties concerned, and the appeal has to be disposed of, as expeditiously as possible. Petition disposed off.
Issues Involved:
1. Challenge to the order-in-original dated 29.06.2016. 2. Availability and necessity of appellate remedy under the Customs Act, 1962. 3. Interpretation of the term "Proper Officer" under the Customs Act. 4. Impact of pending cases before higher courts on current proceedings. 5. Jurisdiction of High Court under Article 226 of the Constitution of India. Detailed Analysis: 1. Challenge to the order-in-original dated 29.06.2016: The writ petitions were filed challenging the order-in-original dated 29.06.2016 passed by the respondent. The petitioners raised several factual and legal grounds against this order. 2. Availability and necessity of appellate remedy under the Customs Act, 1962: The preamble of the impugned order specified the appellate remedies available under Section 129A(1) of the Customs Act, 1962. The petitioners had not utilized the appellate remedy provided under the Act. The court emphasized that the appellate authority is the final fact-finding authority and the importance of the appellate remedy should not be undermined by the courts. The court reiterated that the valuable right of appeal conferred on the aggrieved person under the statute should not be dispensed with unnecessarily. 3. Interpretation of the term "Proper Officer" under the Customs Act: The petitioners contended that the show cause notice was issued by an improper officer, referencing the Delhi High Court's decision in Mangali Impex Limited Vs. Union of India. However, the Supreme Court had stayed the Delhi High Court's judgment. The court referred to its previous judgment in M/s.RKKR Steel Joseph Philip Vs. The Central Board of Excise and Customs, which followed the Supreme Court's ruling in M/s.Canon India Private Limited Vs. Commissioner of Customs. The Supreme Court had held that the "proper officer" is the officer having jurisdiction over the concerned person. The court concluded that the proper officer, as defined under Section 2(34) of the Act, includes any officer assigned those functions by the Board or the Commissioner of Customs. 4. Impact of pending cases before higher courts on current proceedings: The court opined that the mere pendency of a case before the Supreme Court cannot be a ground for keeping matters pending before the High Courts. The court stressed that matters should be disposed of on merits and based on the facts and circumstances presented by the parties. The court highlighted the adverse effects of prolonged litigation and the necessity of cautious adjournments. 5. Jurisdiction of High Court under Article 226 of the Constitution of India: The court elaborated on the principle that writ petitions should not be entertained in the presence of an appellate remedy. The court referenced its previous judgment in M/s.Sri Sathya Jewellery Vs. The Principal Commissioner of Customs, emphasizing that the High Court should not usurp the powers of the appellate authorities by adjudicating merits based on documents and evidence. The court stated that the legislative intention behind providing appellate remedies must be scrupulously followed and that the High Court's role is limited to ensuring that procedural aspects are followed by the competent authorities. Conclusion: The court dismissed the writ petitions, directing the petitioners to exhaust the appellate remedy available under the Customs Act. The petitioners were granted 60 days to file an appeal, and the appellate authority was instructed to entertain the appeals without reference to the period of limitation and adjudicate them on merits and in accordance with the law. The court reiterated the importance of institutional respect and the necessity of following the legislative intention behind appellate provisions.
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