2022 (1) TMI 1186 - HC - Customs

Maintainability of petition - availability of alternative remedy of appeal - alternate remedy under Section 128 of Central Customs Act, 1962 within 60 days or not - Confiscation - seized goods - Indian Currency - penalty u/s 114AA of CA - scope of 'proper officer' - HELD THAT - Sub para (iii) and para 42 have not been printed in the notice and on the next para 43 to para 47 are there, it appears that due to inadvertently typographical/ printing error para 41(iii) and 42 could not be typed as in case of other seven others notices all these provisions are there. Despite missing of these paras in the show cause notice issued to the petitioner he has submitted a detailed reply in respect of the proposed penalty. Hence no prejudice has been caused to him. The petitioner has understood that the penal provisions have also been invoked against him by respondent No.4 by way of show-cause notice. The petitioner is challenging the final order by way of writ petition wherein undisputedly, the petitioner is having remedy of appeal under Section 128 of the Customs Act, against the said order and thereafter further remedy of appeal under Section 129 before the Customs, Excise and Service Tax Appellate Tribunal. All the grounds raised in this petition are available to the petitioner to be raised before the Appellate Authority as well as Tribunal. The Appellate Authority as well as Tribunal are competent to appreciate the technical grounds raised by the petitioner, therefore, we do not find any ground to interfere with the impugned in the writ petition filed under Article 226 of the Constitution of India. The Writ Petition is dismissed for want of alternative and efficacious remedy of appeal.

Issues:
1. Jurisdiction of DRI officers under Customs Act, 1962.
2. Confiscation of seized goods and imposition of penalty under Section 114 AA.
3. Validity of show cause notice and subsequent order-in-original.
4. Invocation of penal action against the petitioner.
5. Availability of alternative statutory appeals.

Jurisdiction of DRI officers under Customs Act, 1962:
The petitioner challenged the jurisdiction of DRI officers, arguing they do not fall under the definition of a 'proper officer' as per Section 2(34) of the Customs Act. The petitioner contended that the confiscation of seized goods and the subsequent raid were without jurisdiction. However, the Court noted that the petitioner had the remedy under Section 128 of the Customs Act within 60 days. The Court examined the grounds raised by the petitioner regarding the jurisdiction of the DRI officers and the legality of the confiscation.

Confiscation of seized goods and imposition of penalty under Section 114 AA:
The impugned order involved the confiscation of seized goods and imposition of a penalty under Section 114 AA of the Customs Act, 1962. The petitioner contested the penalty imposed, arguing it was without jurisdiction. The Court reviewed the details of the seized gold bars, their valuation, and the circumstances leading to the confiscation. The Court analyzed the legality of the penalty imposed and assessed whether it was sustainable under the relevant provisions of the Customs Act.

Validity of show cause notice and subsequent order-in-original:
The show cause notice issued to the petitioner raised concerns regarding the proposed penal action and subsequent corrigendum invoking specific sections of the Customs Act. The petitioner objected to the procedural irregularities, highlighting the absence of penal action in the initial notice. The Court examined the sequence of events, including the issuance of the corrigendum, and assessed whether the petitioner was prejudiced by the typographical errors in the notice. The Court considered the petitioner's response to the show cause notice and its impact on the validity of the order-in-original.

Invocation of penal action against the petitioner:
The petitioner raised objections to the penal action proposed in the show cause notice and subsequent corrigendum. Despite procedural discrepancies, the Court noted that the petitioner participated in the proceedings and raised objections only at the final hearing. The Court evaluated whether the petitioner's objections were justified and whether the penal provisions invoked against the petitioner were legally sound. The Court considered the petitioner's understanding of the penal provisions and the implications of the corrigendum on the final decision.

Availability of alternative statutory appeals:
The Court addressed the petitioner's challenge to the final order through a writ petition despite the availability of statutory appeals under Sections 128 and 129 of the Customs Act. The Court emphasized the importance of pursuing alternative remedies through the appellate process. The Court dismissed the writ petition, citing the existence of statutory appeal mechanisms that could adequately address the petitioner's grievances. The Court clarified that observations made in the writ petition would not impact the appellate authority's consideration of the case.

In conclusion, the judgment analyzed various issues related to the jurisdiction of DRI officers, confiscation of seized goods, validity of the show cause notice, invocation of penal action, and the availability of statutory appeals under the Customs Act, ultimately dismissing the writ petition for lack of an alternative and efficacious remedy of appeal.

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