2023 (1) TMI 558 - HC - Customs

Maintainability of petition - availability of alternative remedy - seeking to quash levy of penalty under Section 114 (iii) of the Customs Act, 1962 - appealable under Section 128 of Customs Act, 1962 - HELD THAT - In the present case, personal hearing was not granted to the petitioner before passing the impugned order, even the authority without invoking Section 113 of the Customs Act, went-on to pass order under Section 114 of the Customs Act. The value of goods was not assessed or determined before passing the impugned order - In such a situation, the order passed in W.P. No.11973/2022 and connected cases are not applicable to the facts and circumstances of the present cases. The writ petitions could not be dismissed on the ground of alternative remedy. So far as delay in deciding the issue is concerned, sufficient reasons have been assigned for the same. Learned counsel for the respondents relied on the judgment of Apex Court in the case of Hindustan Coca Cola Beverage Private Limited vs. Union of India and others 2014 (9) TMI 585 - SUPREME COURT in which it is held that when the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties. In Hameed Kunju vs. Nizam 2017 (7) TMI 1414 - SUPREME COURT the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others 2016 (3) TMI 1435 - SUPREME COURT it is held that when there statutory appeal is provided, then the said remedy has to be availed. Looking to the fact of availability of an efficacious alternative remedy, it is not deemed proper to entertain these petitions - petition dismissed.

Summary

Issues:
1. Whether the impugned order is appealable under Section 128 of the Customs Act, 1962.
2. Whether the writ petitions should be dismissed on the ground of availability of an alternative remedy.
3. Whether the principle of natural justice was violated in the present case.
4. Whether the delay in deciding the issue was justified.
5. Whether the petitions should be entertained or dismissed based on the availability of an alternative remedy.

Analysis:
1. The respondents raised a preliminary objection regarding the appealability of the impugned order under Section 128 of the Customs Act, 1962. The petitioner argued citing the Whirlpool Corporation case that alternative remedy is not a bar in certain circumstances, such as violation of fundamental rights or natural justice. The petitioner contended that as personal hearing was not granted before passing the impugned order and the value of goods was not assessed, the writ petitions should not be dismissed solely on the ground of an alternative remedy.

2. The petitioner's counsel highlighted that the writ petitions in question should not be dismissed based on the availability of an alternative remedy. The petitioner argued that the facts and circumstances of the present case were distinct from previous cases where similar petitions were dismissed. The respondents, however, emphasized the availability of an efficacious alternative remedy as per legal precedents and urged the court not to entertain the petitions.

3. The issue of whether the principle of natural justice was violated in the present case was also deliberated. The petitioner claimed that personal hearing was not granted before passing the impugned order under Section 114 of the Customs Act, which raised concerns about procedural fairness. In contrast, the respondents argued that personal hearings were indeed conducted, as evidenced in the order-in-original, thus refuting the allegation of a violation of the principle of natural justice.

4. Addressing the delay in deciding the issue, the court noted that reasons for the delay had been provided in the relevant sections of the order. This acknowledgment aimed to justify the timeline of the decision-making process and ensure transparency in handling the case.

5. The court referred to various judgments, including Hindustan Coca Cola Beverage Private Limited vs. Union of India and others, Hameed Kunju vs. Nizam, and Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others, to underscore the importance of availing statutory appeal remedies when provided by law. Considering the availability of an efficacious alternative remedy, the court decided to dismiss the petitions, granting the petitioner the liberty to pursue the alternative remedy as advised by law.