2023 (1) TMI 645 - HC - Customs

Maintainability of petition - availability of alternative remedy of appeal - Smuggling of Gold - opportunity of personal hearing was provided or not - HELD THAT - This writ Court after careful consideration in this matter is of the considered view that the captioned writ petition does not pass muster in the Admission Board and it deserves to be dismissed - this Court is of the considered view that it is for the Appellate Authority to examine the same if an appeal is preferred as the records would speak for itself. In the case on hand, several statements have been recorded including that of the writ petitioner and therefore, as the dates have been given with specificity seen in the light of a letter dated 28.07.2022 written by counsel for the writ petitioner to which the attention of this Court is drawn, this Court finds that personal hearing is a matter which turns on factual disputation and the same can be gone into by the Appellate Authority if the writ petitioner chooses to avail the alternate remedy of appeal. This answers NJP facet of the matter. If the writ petitioner chooses to avail alternate remedy by filing appeal to the Commissioner of Customs (appeals) under Section 128 of said Act, the Appellate Authority shall consider the appeal (subject of course to pre-deposit and limitation) on its own merits and in accordance with law uninfluenced / untrammeled by the observations made in this order as the observations made in this order is for the limited purpose of disposal of the captioned writ petition. The sequitur is captioned Writ Petition fails and the same is dismissed.

Summary

Issues Involved:
1. Violation of Natural Justice Principles (NJP) due to lack of personal hearing.
2. Denial of cross-examination of co-noticees.
3. Availability of alternate remedy under the Customs Act.

Detailed Analysis:

1. Violation of Natural Justice Principles (NJP) due to lack of personal hearing:
The petitioner argued that under Section 124(c) of the Customs Act, a reasonable opportunity of being heard is mandatory, and claimed that no personal hearing was provided before the impugned order was made. The petitioner cited judgments from the Supreme Court and High Courts to support the necessity of personal hearings. However, the court noted that the impugned order mentioned that several personal hearings were extended but the petitioner adopted dilatory tactics. The court emphasized the principle that official acts are presumed to be done correctly unless proven otherwise. The court also highlighted the Alternate Remedy Rule, emphasizing that the petitioner should have availed the statutory appeal process under Section 128 of the Customs Act, which allows for a comprehensive review of factual disputes.

2. Denial of cross-examination of co-noticees:
The petitioner initially contended that cross-examination of co-noticees is a right but later restricted the argument to the lack of personal hearing. The court referred to the Supreme Court's decision in Kanungo & Company Vs. Collector of Customs, which stated that natural justice does not require cross-examination of informants in customs cases. The court found that the issue of cross-examination was not compelling enough to bypass the alternate remedy of appeal.

3. Availability of alternate remedy under the Customs Act:
The court extensively discussed the principle of alternate remedy, citing several Supreme Court judgments, including Dunlop India Ltd., Satyawati Tandon, K.C. Mathew, Commercial Steel Limited, and Greatship (India) Limited. The court reiterated that the existence of an alternate remedy is a significant factor in deciding whether to entertain a writ petition. The court concluded that the petitioner should have pursued the statutory appeal process, which includes a pre-deposit of 7.5% of the duty or penalty in dispute. The court found no exceptional circumstances that warranted bypassing the statutory remedy.

Conclusion:
The court dismissed the writ petition, emphasizing that the petitioner should avail the alternate remedy of appeal under Section 128 of the Customs Act. The court clarified that the observations made in the order were solely for the purpose of disposing of the writ petition and should not influence the appellate authority's decision. Consequently, the writ miscellaneous petition was also dismissed.