2024 (12) TMI 1042 - HC - Customs

Maintainability of petition - availability of alternative remedy - Challenge to Order-in-Original made by the Commissioner of Customs (II) Airport Special Cargo, Andheri (E), Mumbai - only averment in the petition in the context of alternate remedy was found - HELD THAT - The issue of whether the statutory authority has not acted in accordance with the provisions of the enactment in question will have to be examined in the context of the facts and other material on record. These are disputed questions of facts and would involve appreciation and evaluation of the material on record. It is too premature to hold that this is a case of perversity. Therefore, based upon COMMISSIONER OF INCOME TAX OTHERS VERSUS CHHABIL DASS AGARWAL 2013 (8) TMI 458 - SUPREME COURT , no case is made out to bypass the rule or practice of exhaustion of alternate remedies. There is no material on record, and nothing is pleaded about the Petitioner s capacity to arrange the pre-deposit amount. At least the impugned order indicates that during the hearing in question, the Petitioner was dealing in the import and export of gold and had a turnover of Rs.485 crores. It is declined to entertain this petition. However, this will not preclude the Petitioner from instituting an appeal against the impugned order. None of the observations in this order need to influence the Appellate Court should the Petitioner institute an appeal against the impugned order. The observations were in the context of considering the submissions regarding the departure from the rule or practice of exhaustion of alternate remedies. Petition disposed off.

Summary

Issues:
Challenge to Order-in-Original (O-I-O) by Commissioner of Customs, Alternate remedy of appeal, Perversity of findings, Statutory authority's compliance, Exceptional circumstances for bypassing alternate remedies, Enforcement of fundamental rights, Violation of natural justice, Jurisdiction, Exhaustion of statutory remedies, Breach of statutory provisions, Capacity to arrange pre-deposit amount, Practice of exhaustion of alternate remedies, Filing an appeal against impugned order, Condonation of delay.

Analysis:

The petition challenges the Order-in-Original (O-I-O) issued by the Commissioner of Customs, raising the issue of whether the petitioner should be allowed to bypass the alternate remedy of appeal available to them. The petitioner argues that the findings regarding gold consignments were based on insufficient evidence and seeks the court's intervention without exhausting statutory remedies. The respondent contends that no exceptional circumstances warrant bypassing the alternate remedies and emphasizes the importance of following the statutory regime in such matters.

The court notes that the petition lacks a valid claim for bypassing alternate remedies and cites previous judgments to support the rule of exhaustion of statutory remedies. It highlights that the exceptions to this rule arise in cases involving fundamental rights, natural justice violations, lack of jurisdiction, or legislative vires challenges, none of which apply in this case. The court emphasizes that resorting to statutory remedies before invoking discretionary remedies under Article 226 is a rule of policy and discretion.

Referring to relevant case laws, the court underscores the importance of not interfering with alternate remedies unless exceptional circumstances exist. It clarifies that disputed questions of fact require evaluation of evidence, making it premature to label the case as one of perversity. The court's decision is guided by the principle that the statutory authority's compliance must be examined in light of the facts and material on record, indicating that no breach of statutory provisions is evident.

Furthermore, the court dismisses the petitioner's argument regarding their capacity to arrange the pre-deposit amount, noting the petitioner's substantial turnover in the relevant year. The court declines to entertain the petition, emphasizing that the petitioner can still file an appeal against the impugned order. The judgment underscores that the observations made do not influence the Appellate Court and advises the petitioner to pursue the appeal process within the specified timeline.

In conclusion, the court dismisses the petition without costs, vacates any interim orders, and instructs all parties to act based on the court's decision. The judgment highlights the importance of following the rule of exhaustion of statutory remedies and encourages the petitioner to pursue the appeal process diligently.