2016 (4) TMI 923 - HC - Customs

Seeking release of confiscated goods - Seizure of 26 gold biscuits - Section 110(1) of the Customs act, 1962 - Illegally imported into India - Held that - the seizure of the gold in this case was not an exception, but on earlier occasions also, such seizure of smuggled gold while being transported by air or train had been carried out. Moreover, the gold items in the instant case were being carried stealthily by the accused persons. Thus, according to Customs authorities, there was a reasonable belief that the instant goods have been smuggled into India without payment of customs duty in violation of Section 7(1)(c) and Section 11 of the Customs Act, 1962 and were liable for confiscation under Section 111 of the Act after seizure under Section 110 of the customs Act, 1962. The reasons furnished by the petitioner in the petition as well as subsequent affidavits seem to be only hyper-technical and learned counsel has tried to build up his case mainly on the basis of case laws Alternative remedy - Held that - there is no violation of the principle of natural justice or a fundamental right or there is impugnment of vires of the Act by way of any challenge. Moreover, we also do not find that the proceedings of the case are pending at a stage which could foreclose the right to avail the alternative remedy of filing appeal. In the case like the one in hand, the petitioner cannot be allowed to take recourse to prerogative writ under Article 226 of the Constitution of India otherwise it may amount to enabling and empowering a litigant to defeat the provisions of the statute providing for certain conditions for filing the appeal, like limitation, payment of Court fee, or deposit of some amount for entertaining the appeal. It is also not a case where there is arbitrary exercise of powers by statutory authority in clear violation of the provisions of statute. Though the petitioner has tried to offer some explanations in support of the arguments on the requirement of reason to believe as contained in Section 110 of the Customs Act, 1962 but it is also not a case where the appeal or any further proceedings under the statute were not or would not be dealt with on merit and may end as a mere idle formality because the administrative authorities under the Customs Act are also a quasi judicial authority and as such, they are under a legal obligation to decide the matter carefully and pass speaking and reasoned orders in accordance with law after giving full opportunity to the parties. It should be remembered that the rule requiring the exhaustion of a statutory remedy before the writ is to be granted is more appropriately a rule of policy, convenience and discretion than a rule of law and the Court may, therefore, in exceptional cases, issue a writ, such as, a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. The proceedings under the Customs authorities being in the nature of quasi-judicial cannot be quashed lightly. The exercise of prerogative writ jurisdiction is pre-eminently one of discretion and no inflexible rule can be laid. Where the provisions of Customs Act have not been complied with or if the fundamental principles of judicial procedure have been given a goodbye, the High Court can certainly grant relief in exercise of prerogative writ. However, the right of appeal as provided in the Customs Act should not be by passed merely on the ground that it is an appeal from one administrative authority to another. However the facts of the case in hand are not such that can attract the exercise of writ jurisdiction. - Decided against the petitioner

Issues Involved:
1. Validity of the seizure of gold biscuits under Section 110 of the Customs Act, 1962.
2. Legality of the proceedings initiated by the Customs Authorities.
3. Determination of the ownership and legality of the seized gold biscuits.
4. Examination of alternative remedies and the appropriateness of invoking writ jurisdiction.

Issue-wise Detailed Analysis:

1. Validity of the Seizure of Gold Biscuits under Section 110 of the Customs Act, 1962:

The petitioner challenged the seizure of 26 pieces of gold biscuits by the Customs Inspector, arguing that the seizure was made without "reason to believe" that the goods were liable to confiscation under the Customs Act. The petitioner cited the legal requirement under Section 110(1) of the Customs Act, which mandates that the proper officer must have a reason to believe that the goods are liable to confiscation before seizing them. The petitioner asserted that the gold biscuits were legally purchased from M/s Magna Projects Pvt. Ltd., Kolkata, and were being transported with valid documents. The petitioner argued that the seizure was a colorable exercise of power and a fraud on power, lacking any basis to believe that the gold was of foreign origin or illegally imported.

2. Legality of the Proceedings Initiated by the Customs Authorities:

The petitioner contended that the Customs Authorities did not have sufficient grounds to proceed with the seizure and subsequent actions. The petitioner highlighted that the seizure memo did not disclose the purity of the gold or any markings to indicate foreign origin. The petitioner argued that the Customs Authorities failed to establish "reasons to believe" and acted on mere suspicion, which is not sufficient under the law. The petitioner also cited various judgments to support the contention that the power of seizure cannot be used as a roving and fishing enquiry and must be based on reasonable belief.

3. Determination of the Ownership and Legality of the Seized Gold Biscuits:

The petitioner provided detailed invoices and bank transaction records to substantiate the legal purchase of the gold biscuits from M/s Magna Projects Pvt. Ltd. The petitioner explained that the gold was being sent to Kolkata for processing into Hallmark gold coins for the "Ningol Chak Kouba" festival in Manipur. The petitioner argued that the gold was legally acquired and transported with valid documents, and the Customs Authorities' suspicion of smuggling was unfounded. The petitioner also claimed that the burden of proving that the gold was smuggled lies with the Customs Authorities, as the gold was not seized from the petitioner's possession but handed over by the Railway Protection Force.

4. Examination of Alternative Remedies and the Appropriateness of Invoking Writ Jurisdiction:

The Court emphasized that the petitioner should have exhausted alternative remedies available under the Customs Act, such as filing a statutory appeal, before invoking writ jurisdiction. The Court cited various judgments to support the principle that the existence of an alternative remedy is a significant factor in deciding whether to exercise writ jurisdiction. The Court noted that the Customs Authorities are quasi-judicial bodies and are obligated to decide matters carefully and pass reasoned orders. The Court concluded that the petition involved disputed questions of fact that required scrutiny of evidence, which is not appropriate for writ jurisdiction.

Conclusion:

The writ petition was dismissed, with the Court directing the petitioner to file a statutory appeal and pursue other remedies available under the Customs Act. The Court clarified that the appellate authority should not be influenced by any observations or findings recorded in the judgment and must decide the appeal on its merits, passing a speaking order.

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