2015 (2) TMI 437 - HC - Customs

Maintainability of appeal - Alternate remedy - Held that - A perusal of the impugned order would show that as against the order made in original, an appeal would lie to the Commissioner (Appeal) within 60 days under Section 128 of the Customs Act, 1962. It is repeatedly held by this Court on very many occasions that when a statutory remedy of appeal is available, more particularly, in fiscal matters, question of approaching this Court under Article 226 does not arise for seeking the relief or challenging the order passed by the adjudication authorities - Present petition not maintainable - Decided against assessee.

Summary

Issues:
Petitioner seeking Writ of Certiorarified Mandamus to quash order confiscating gold and levy of duty. Availability of alternative remedy through appeal under Customs Act, 1962.

Analysis:
The petitioner filed a writ petition seeking relief against an order passed by the second respondent confiscating gold and imposing a penalty under the Customs Act, 1962. The petitioner requested the court to quash the order and direct the release of the seized gold along with a refund of the duty amount. The impugned order was issued on 21.05.2014 under Sections 111(d), (1) (m) & (o) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (D&R) Act, 1992, imposing a penalty of Rs. 35,000. The court heard arguments from both parties and noted that an appeal lies to the Commissioner (Appeal) within 60 days as per Section 128 of the Customs Act, 1962.

The court emphasized that in fiscal matters, when a statutory remedy of appeal is available, approaching the court under Article 226 is not appropriate. Several precedents were cited to support this principle, including cases like M/s.Nivaram Pharma Private Limited vs. The Customs, Excise and Gold (Control) Appellate Tribunal, United Bank of India vs. Satyawati Tondon, Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement, and Metal Weld Electrodes vs. CESTAT, Chennai. The court held that since an alternative remedy through appeal exists, the writ petition is not maintainable. Consequently, the court dismissed the writ petition but granted the petitioner liberty to file an appeal before the appellate authority within four weeks. If an appeal is filed, the appellate authority must consider and decide on the appeal within eight weeks. The connected Miscellaneous petition was also dismissed with no costs imposed.