2010 (3) TMI 502 - HC - Customs

Writ Jurisdiction There was an objection raised to the maintainability of the petition. Alternative remedy by way of appeal available before High Court. Order of Tribunal passed without considering submissions raised by petitioner and no reason assigned in support of the view taken by Tribunal. Held that matter needs to be remanded back to Tribunal for considering afresh. No useful purpose would be served by directing the petitioner to withdraw the petition and file the appeal that too before High Court only. Looking to consensus between the parties, without directing the petitioner to exhaust alternative remedy, the impugned order set aside.

Summary

Issues:
1. Maintainability of the writ petition in light of the availability of alternate remedy through appeal.
2. Allegations of the impugned order not considering all contentions raised by the Petitioner.
3. Discrepancies in the application of customs notifications and clarifications by the Tribunal.
4. Decision on remanding the matter back to the Tribunal for fresh consideration.

Issue 1: Maintainability of the writ petition
The Respondent raised a preliminary objection to the maintainability of the petition, citing the availability of an alternate remedy through appeal. The Petitioner had initially filed an appeal in the High Court of Punjab and Haryana, which was allowed to be withdrawn with liberty to file the same before the appropriate Court. The Respondent argued that the Petitioner should have pursued the appeal instead of filing the present Writ Petition, emphasizing the availability of an alternate remedy under the Act.

Issue 2: Allegations of the impugned order
During the hearing, it was highlighted that the impugned order by the Tribunal did not consider all contentions raised by the Petitioner. The Petitioner's counsel pointed out that similar goods imported by the Sports Authority of India were cleared by Customs Authorities based on a specific notification. The order of the Tribunal was criticized for not adequately addressing the submissions made by the Petitioner and lacking reasons to support its conclusions. The Respondent could not defend the approach adopted by the Tribunal, leading to a consensus between the parties that the matter needed to be remanded back for fresh consideration.

Issue 3: Discrepancies in the application of customs notifications
The Petitioner argued that the Tribunal did not appropriately apply the customs notifications and clarifications relevant to the case. Specific references were made to various notifications and a clarification issued by the Government of India, indicating that the Tribunal failed to provide a reasoned analysis for not applying these provisions to the case at hand. The lack of discussion on the applicability of these notifications was highlighted as a flaw in the Tribunal's decision-making process.

Issue 4: Decision on remanding the matter
Considering the consensus between the parties and the acknowledgment of deficiencies in the Tribunal's order, the Court decided to remand the matter back to the Tribunal for fresh consideration. The impugned order was set aside, and the Writ Petition was allowed. The appeal was restored to the Tribunal with directions to consider it afresh by issuing a reasoned order following principles of natural justice. The Court emphasized that all rival contentions on merits should be kept open, and the Tribunal was instructed to hear and decide the appeal within a specified timeframe to ensure timely resolution of the matter.