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2010 (3) TMI 259 - HC - CustomsJurisdiction of high court - Smuggling of foreign currency collusion with customs officer writ petition u/s articles 226 and 227 of the Constitution of India versus Section 130(3) of the Customs Act, 1962 for filing the reference application in the High Court Held that When a forum is provided under the statute for filing of the reference application and/or appeal, there is no reason to supersede the said provision and to file the Writ Petition asking the Court to adjudicate the matter in Writ Petition under Article 226 of the Constitution of India. The Apex Court time and again held that the High Court should not entertain the Writ Petition when the statutory remedy is available to the parties in the statute, unless exceptional circumstances are made out. - petition is liable to be dismissed as it involves disputed questions of facts. But, even on the material available on record without raising any dispute with respect to that, the petition cannot succeed on merit for the reasons recorded
Issues Involved:
1. Maintainability of the Writ Petition under Articles 226 and 227 of the Constitution of India. 2. Merits of the case regarding the alleged smuggling of foreign currency. 3. Legality of the orders passed by the Customs, Excise & Gold (Control) Appellate Tribunal (CEGAT). Detailed Analysis: 1. Maintainability of the Writ Petition: The primary issue was whether the writ petition was maintainable under Articles 226 and 227 of the Constitution of India, given the alternate remedy available under Section 130(3) of the Customs Act, 1962. Preliminary Objection: - The Respondent No.1 raised a preliminary objection, stating that the Petitioner/Revenue did not file an application under Section 130(3) of the Customs Act within the prescribed six months period after the CEGAT's order dated 15.05.1998. The Writ Petition was filed nearly two years later, only after the CEGAT directed compliance with its order on 04.01.2000. - The Petitioner argued that the Writ Petition was justified as the CEGAT's order was allegedly passed without considering the facts on record and cited a precedent where a petition pending for several years was not dismissed on technical grounds. Court's Consideration: - The Court held that the Writ Petition was not maintainable due to the availability of an alternate remedy under the Customs Act. The provision for reference would be rendered nugatory if writ jurisdiction was invoked despite express provision for reference. - The Court cited several precedents emphasizing that writ petitions should not be entertained when statutory remedies are available unless exceptional circumstances are demonstrated. - The Court also noted that the Petitioner had filed a Civil Application to convert the Writ Petition into a Reference Application, indicating abandonment of the Writ Petition route. Conclusion: - The Writ Petition was dismissed on the ground of maintainability, as the Petitioner failed to avail the specific alternate remedy within the prescribed period. 2. Merits of the Case: Despite the dismissal on maintainability grounds, the Court addressed the merits of the case due to submissions made by both parties. Petitioner's Arguments: - The Petitioner argued that the Respondent No.1 was caught with 40,000 US dollars while attempting to smuggle the currency out of India, and this was supported by his initial confession under Section 108 of the Customs Act. - The Petitioner contended that the Respondent No.1 failed to provide a legitimate source for the foreign currency and that the currency declaration form was fraudulently managed with the help of Respondent No.2, a customs officer. Respondent's Arguments: - The Respondent No.1 argued that he had declared the currency upon arrival in India, and the Petitioner failed to provide evidence to the contrary. - The Respondent highlighted that he was acquitted in a criminal case for the same allegations, and the Petitioner had not taken serious departmental action against Respondent No.2. - The Respondent also pointed out discrepancies in the Petitioner's evidence, such as the boarding pass and flight details, indicating manipulation by the Petitioner. Court's Findings: - The Court found that the Petitioner failed to produce cogent evidence to support the claim that the currency declaration form was fabricated. - The Court noted that several witnesses in the criminal trial confirmed the authenticity of the currency declaration form. - The Court observed discrepancies in the Petitioner's evidence, such as the boarding pass of a different flight, which suggested manipulation. Conclusion: - The Court concluded that the Respondent No.1 had not committed any offense related to smuggling the foreign currency. The Petitioner's case was based on manipulated documents and lacked substantive evidence. 3. Legality of CEGAT's Orders: The Petitioner challenged the legality of the CEGAT's orders dated 17.01.1998 and 15.05.1998. Petitioner's Arguments: - The Petitioner argued that the CEGAT failed to consider the evidence and logical points addressed in the order-in-original. Respondent's Arguments: - The Respondent argued that the CEGAT's decision was based on a thorough examination of the facts and evidence, and the Petitioner's claims were unsubstantiated. Court's Findings: - The Court upheld the CEGAT's orders, finding no merit in the Petitioner's arguments. The CEGAT had rightly allowed the appeals based on the evidence presented. Conclusion: - The Court dismissed the Writ Petition and upheld the CEGAT's orders, directing the Petitioner to refund the confiscated currency with interest and imposing costs for bringing bogus documents to harass the Respondents. Final Judgment: - The Writ Petition was dismissed with costs, and the Petitioner/Revenue was directed to refund the 40,000 US dollars along with 9% interest from the date of confiscation till its refund to the Respondent No.1. The Petitioner was also directed to pay Rs.15,000 each to the Respondents Nos.1 and 2 towards costs.
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