2023 (1) TMI 582 - HC - Customs

Maintainability of petition - availability of alternative remedy - levy of penalty u/s 114 (iii) of the Customs Act, 1962 - appealable order under Section 128 of Customs Act, 1962 or not - HELD THAT - 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 efficatious alternative remedy, it is not found proper to entertain these petitions - petition dismissed.

Summary

Issues:
Challenge to order under Section 114 (iii) of the Customs Act, 1962 - Availability of alternative remedy under Section 128 of Customs Act, 1962 - Applicability of statutory appeal - Dismissal of petitions under Article 227 of the Constitution of India.

Analysis:
The petitions sought to quash an order passed by the Additional Commissioner under Section 114 (iii) of the Customs Act, 1962, based on a Show Cause Notice issued by the Joint Director. The respondents raised a preliminary objection, contending that the impugned order was appealable under Section 128 of the Customs Act before the Commissioner. Citing the judgment in Hindustan Coca Cola Beverage Private Limited vs. Union of India, it was argued that when a statutory appeal is provided by the statute, parties must avail of that remedy. The court referred to the case of Hameed Kunju vs. Nizam, where it was held that petitions under Article 227 should be dismissed when a statutory appeal exists. Additionally, in the case of Ansal Housing and Construction Limited vs. State of Uttar Pradesh, it was reiterated that when a statutory appeal is available, parties must utilize that remedy.

The court, considering the presence of an efficacious alternative remedy under Section 128 of the Customs Act, decided not to entertain the petitions. The petitioners were advised to avail themselves of the alternative remedy as per the law. Consequently, the petitions were dismissed, granting the petitioner the liberty to pursue the statutory appeal provided under the Customs Act, 1962.