2023 (5) TMI 1379 - HC - Customs

Challenge to assessment order - rejection of export goods - intention to reexport the goods after curing the defects - Confiscation - penalty - HELD THAT - In the instant case, this Court specifically permitted the petitioner to invoke its statutory remedy as provided under the Act, which it availed and the petitioner preferred the appeal, and suffered Ext.P16 order. The statute provides a further appeal before the Customs, Excise and Service Tax Appellate Tribunal under Section 129A of the Act. It is too late in the day for the petitioner to now aspire and turn around and challenge the legality of Exts.P9 and 16 orders in a writ petition. In the above conspectus, it is not required to entertain this writ petition - petition dismissed.

Summary

Issues:
1. Challenge to Ext.P16 order passed under Section 128A of the Customs Act, 1962.
2. Applicability of writ jurisdiction under Article 226 of the Constitution of India.
3. Interpretation of statutory remedies available to the petitioner.
4. Consideration of previous court orders and appeals filed by the petitioner.

Analysis:
The petitioner, a manufacturer and exporter of cashew-based products, challenged Ext.P16 order passed under Section 128A of the Customs Act, 1962. The petitioner's consignment of organic cashew kernels was rejected and returned to Cochin Port for reexport after curing defects. However, during inspection, 200 cartons were deemed unfit for human consumption, leading to confiscation, destruction of goods, and a penalty of Rs. 50,000 imposed by Ext.P9 order. The petitioner's appeal against Ext.P9 was also dismissed by the impugned Ext.P16 order, which the petitioner claimed to be erroneous and wrong, prompting the writ petition.

The petitioner argued that despite the appealability of Ext.P16 order, they could invoke the writ jurisdiction under Article 226 of the Constitution of India, citing relevant court decisions. The petitioner contended that Ext.P16 was rendered without considering fundamental legal provisions, making the writ petition maintainable within exceptions recognized by the Supreme Court. However, the respondent countered, pointing out that the petitioner had previously withdrawn a similar petition, later allowed to exercise statutory remedy by the court. The respondent emphasized that Ext.P16 order indicated a further right of appeal under Section 129AI of the Customs Act, precluding the need for writ jurisdiction.

Referring to Radha Krishnan Industries, the court highlighted that when a statute prescribes a remedy or procedure for enforcing a right, that statutory remedy must be pursued before invoking discretionary remedies under Article 226. The court noted that the petitioner had availed the statutory remedy by filing an appeal and receiving Ext.P16 order. Additionally, the statute provided for a further appeal before the Customs, Excise, and Service Tax Appellate Tribunal under Section 129AI. Consequently, the court dismissed the writ petition, stating that the petitioner's challenge to Exts.P9 and P16 orders through a writ petition was untimely, while affirming the petitioner's right to pursue statutory remedies in accordance with the law.