2024 (4) TMI 250 - HC - Customs

Maintainability of petition - alternative remedy of appeal - Validity Of show-cause notice - No opportunity of personal hearing - violation of principles of natural justice - diverting cut and polished diamonds - without following the procedure prescribed under the Special Economic Zone Act, 2005 ( the SEZ Act ) - HELD THAT - We are of the opinion that though the petition is maintainable under Article 226 of the Constitution of India, the petitioner is unable to point out as to whether the notices were served upon him by the respondent-Assessing Officer. In the impugned order, it is categorically mentioned that though the notices were served upon the petitioner, the petitioner neither attended the hearing nor submitted any request letter for adjournments on four occasions whereas, in the memo of the petition, it is stated that no such notices were served upon the petitioner. Thus, it involves disputed questions of facts as to whether the notices were served upon the petitioner or not by the respondent-authority which can be considered by the appellate authority while examining the record. We would therefore not like to entertain this petition on ground of not providing opportunity of hearing to the petitioner. We therefore do not entertain this petition as there is alternative efficacious remedy available under the provisions of the Customs Act to be availed by the petitioner and accordingly, without entering into the merits of the matter, the petitioner is relegated to avail such alternative efficacious remedy with a liberty to raise all the contentions which are raised in this petition before the appellate authority. We make is clear that the time spent by the petitioner before this Court in pursuing this petition may be considered as bona fide by the appellate authority in case of any delay which may be considered by the appellate authority to condone the delay, if any, in preferring the appeal by the petitioner within a reasonable time from today. The petition is accordingly dismissed.

Issues involved:
The issues involved in this case are the legality of the Impugned Order passed by Respondent No. 2, violation of principles of natural justice, jurisdiction of the Additional Commissioner of Customs, and the availability of alternative efficacious remedies under the Customs Act.

Issue 1: Legality of Impugned Order:
The petitioner filed a petition under Article 226 of the Constitution of India seeking to quash the Impugned Order passed by Respondent No. 2. The case involved the diversion of cut and polished diamonds from an importer to the Domestic Tariff Area without following the prescribed procedures under the Special Economic Zone Act, 2005. The Directorate of Revenue Intelligence seized the diamonds and conducted investigations, leading to the Impugned Order based on mis-declaration of goods and value by the importer.

Details:
- The petitioner argued that the Impugned Order was illegal, arbitrary, and violated the principles of natural justice.
- The petitioner contended that no personal hearing was granted before passing the order, and notices mentioned in the order were not received.
- Reference was made to relevant legal decisions highlighting the breach of natural justice.
- The petitioner sought to quash the order based on the lack of opportunity for a personal hearing and procedural irregularities.

Issue 2: Jurisdiction of Additional Commissioner of Customs:
The petitioner challenged the jurisdiction of the Additional Commissioner of Customs who issued the show-cause notice and passed the order. The petitioner argued that the Additional Commissioner was not authorized by the Central Government under the Special Economic Zone Act, 2005 to carry out investigations in the SEZ area.

Details:
- The petitioner referred to specific sections of the Customs Act and notifications issued by the Central Government regarding the delegation of powers to specific officers.
- It was contended that the Additional Commissioner did not have the authority to issue the notice or pass the order, rendering them without jurisdiction.
- The petitioner relied on legal precedents to support the argument that the orders were invalid due to lack of proper authorization.

Conclusion:
The High Court, after considering the arguments presented by the petitioner, found that the petition was maintainable under Article 226 of the Constitution of India. However, the court noted discrepancies regarding the service of notices to the petitioner, leading to disputed facts that could be addressed by the appellate authority. The court also highlighted that the issue of jurisdiction could be examined by the appellate authority during appeal proceedings. Consequently, the court dismissed the petition, directing the petitioner to pursue alternative efficacious remedies available under the Customs Act.

Final Decision:
- The petition was dismissed with no orders as to costs.
- The petitioner was advised to avail alternative efficacious remedies under the Customs Act.
- The time spent by the petitioner in pursuing the petition was considered bona fide by the court for potential delay condonation by the appellate authority.

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