2024 (5) TMI 210 - HC - Customs

Power of High Court to entertain writ petition - alternative efficacious remedy u/s 129A - time limitation including extended period of limitation - Smuggling of huge quantity of gold into India - Seizure - confiscation - Penalty u/s 112(a) and 112(b) and 114AA read with section 123 of the Customs Act 1962 ( the Act ) - Denial of opportunity to cross-examine the witnesses and co-noticees - breach of the principle of natural justice - Whether the petitioners can raise such issue of cross-examination supply of documents before the appellate authority or not - HELD THAT - The petitioners have mainly rebutted the preliminary objection raised on behalf of the respondent-authority for entertaining these writ petitions on the ground of having alternative remedy and violation of principle of natural justice as the respondent-authority has not decided the application/request of the petitioners to grant cross-examination of two co-noticee viz. Ms. Nita Parmar and Mr. Rutugna Trivedi and rejected such request in the impugned order. Another ground for preferring these petitions with request to entertain the same is for not supplying the relied upon documents in the pend drive which is according to the petitioner is a basis for passing the impugned order. The facts of the case are so gross to the effect that the petitioners are involved in smuggling of Gold in contravention of the provision of the Customs Act. Therefore without going into merits of the case it would be in the interest of justice to relegate the petitioners to avail the alternative efficacious remedy as held by the Apex Court in case of Assistant Commissioner (CT) LTU v. Glaxo Smith Kline Consumer Health Care Limited 2020 (5) TMI 149 - SUPREME COURT from time-to-time and to enable the petitioners to raise all the contentions before the appellate authority in the appeal which may be filed by the petitioners. It would be also necessary to mention here that the adjudicating authority had already taken a decision to deny the cross-examination to the petitioners of the co-noticee. Even if the matter is sent back to the adjudication authority it would be a futile exercise for the adjudicating authority to again pass a separate order rejecting the demand for cross-examination. Therefore we are of the opinion that such a course would result into an empty formality so as to comply with the principles of natural justice. Even if the matter is remanded back to the adjudicating authority there is a fait accompli of rejection of the request of the petitioners as stated by the adjudicating authority in the impugned order and no fruitful purpose would be served except setting aside the order and putting the clock back for such empty formality. If the appellate authority is of the opinion that the cross-examination is required to be given to the petitioners on the basis of the contention which may be raised by the petitioners after considering the observations made by the adjudicating authority in the impugned order it is for the appellate authority to consider such request by calling for remand report from the adjudicating authority to that extent. However simply because the right of cross-examination is denied to the petitioners we are of the opinion that the matter should not be remanded back to the adjudicating authority in the facts of the case which are glaring and resulting into the impugned adjudication order which is liable for challenge before the appellate authority. Thus these petitions are not entertained as though it may be maintainable under Article 226 of the Constitution of India with liberty to the petitioners to approach to the appellate-authority. The time spent by the petitioners before this Court be considered as bona fide by the appellate authority if the petitioners file appeals before the appellate authority in accordance with law within four week from today without raising an issue of delay. Thus the petitions are disposed of. Notices are discharged. Interim relief stands vacated forthwith.

Summary

Issues Involved:
1. Violation of principles of natural justice.
2. Denial of cross-examination.
3. Non-supply of relied upon documents.
4. Availability of alternative efficacious remedy.

Summary:

1. Violation of Principles of Natural Justice:
The petitioners challenged the Order-in-original dated 29.11.2021 passed by the respondent No. 2-Principal Commissioner of Customs, Ahmedabad, on the grounds of breach of principles of natural justice. The petitioners contended that they were not provided an opportunity to cross-examine the witnesses and co-noticees, and the relied upon documents were not supplied despite repeated requests. The petitioners argued that this non-compliance with natural justice principles rendered the order invalid.

2. Denial of Cross-Examination:
The petitioners sought cross-examination of co-noticees Ms. Nita Parmar and Mr. Rutugna Trivedi, whose statements were crucial to the case. The adjudicating authority denied this request in the impugned order, stating that the statements of these individuals did not implicate the petitioners and that no specific reasons were given for the cross-examination request. The petitioners argued that this denial was contrary to established legal precedents and amounted to a violation of their rights.

3. Non-Supply of Relied Upon Documents:
The petitioners claimed that the documents retrieved from a pen drive seized from Ms. Nita Parmar's premises were not provided to them, despite being referenced in the show-cause notice. They contended that merely offering inspection of these documents was insufficient and did not comply with the principles of natural justice. The petitioners maintained that these documents were essential for their defense and that their non-supply prejudiced their case.

4. Availability of Alternative Efficacious Remedy:
The respondent argued that the petitioners had an alternative efficacious remedy available under section 129A of the Customs Act, 1962, and that the writ petitions should not be entertained. The respondent cited various legal precedents to support this contention, emphasizing that the petitioners should have approached the appellate authority instead of filing writ petitions. The court agreed with this view, noting that the petitioners could raise all their contentions before the appellate authority, which is competent to adjudicate on such matters.

Conclusion:
The court concluded that despite the maintainability of the writ petitions under Article 226 of the Constitution of India, the petitioners should be relegated to the alternative remedy of filing appeals before the appellate authority. The court observed that the adjudicating authority had already decided to deny cross-examination and that remanding the matter back would be an empty formality. The petitions were disposed of with liberty for the petitioners to file appeals within four weeks, and the interim relief was extended till 31.07.2024.