2023 (7) TMI 452 - HC - Customs

Maintainability of petition - impugned order is appealable under Section 129 of Customs Act, 1962 before the Customs Excise Service Tax Appellate Tribunal (CESTAT) or not - seizure of Gold Bars - HELD THAT - In the present case, the petitioner was served a show cause notice under Section 124 of Customs Act, 1962 to show cause as to why the gold bars seized from the possession of Shri Amit Nandi(on the basis of statement of whom, the show cause notice was sent to the petitioner) weighing 1166.40 grams and valued at Rs. 60,88,660/-, should not be confiscated under Section 111(d) and 111(b) of the Customs Act, 1962 and as to why the present petitioner during a period from 25.12.2021 to 26.02.2022 should not be held to be liable for confiscation under Sections 111(d) and 111(h) of the Customs Act, 1962 and why penalty should not be imposed under Sections 112(a) and 112(b) of Customs Act, 1962. The Apex Court in the case of HINDUSTAN COCA COLA BEVERAGE (P) LTD. VERSUS 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 VERSUS NAZIM 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 LTD. VERSUS STATE OF U.P. AND ORS. 2016 (3) TMI 1435 - SUPREME COURT it is held that when there statutory appeal is provided, then the said remedy has to be availed. In view of the aforesaid and also looking to the fact of availability of an efficacious alternative remedy of filing an appeal before the appropriate forum, it is not found proper to entertain this petition - petition dismissed.

Summary

Issues involved:
The issues involved in the judgment are the availability of alternative remedy under Section 129 of Customs Act, 1962, the petitioner's contention regarding the pre-deposit requirement for filing an appeal before the Customs Excise & Service Tax Appellate Tribunal (CESTAT), and the petitioner's request for quashing the order directing confiscation and imposing a penalty.

Issue 1: Availability of Alternative Remedy under Section 129 of Customs Act, 1962:
The petitioner filed a petition under Article 226 of the Constitution of India challenging the impugned order passed by the Additional Commissioner, Customs Headquarters, Indore. The respondents raised a preliminary objection stating that the impugned order is appealable under Section 129 of the Customs Act, 1962 before CESTAT. The petitioner argued that although there is an alternative remedy to file an appeal before CESTAT, the pre-requisite of pre-deposit of 7.5% of the penalty levied is a barrier. Citing the judgment in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, the petitioner contended that alternative remedy is not a bar in certain circumstances, including violation of fundamental rights, natural justice, lack of jurisdiction, or challenge to the Act's validity.

Issue 2: Petitioner's Request for Quashing the Order and Imposition of Penalty:
The petitioner was issued a show cause notice under Section 124 of Customs Act, 1962 regarding the confiscation of gold bars and imposition of penalties. The petitioner was granted three personal hearings to present their defense but failed to appear on the scheduled dates. Subsequently, an order was passed imposing a penalty of Rs. 8 Crores without affording another opportunity for a hearing. The petitioner sought relief from the High Court to quash the order, remand the matter back for a fair hearing, or waive the pre-deposit requirement for filing an appeal. The court considered previous judgments emphasizing the importance of availing statutory appeals when provided, and ultimately dismissed the petition, directing the petitioner to pursue the alternative remedy of filing an appeal before the appropriate forum.