2016 (7) TMI 1149 - HC - Customs

Maintainability of Writ Petition - alternate appellate remedy - question of limitation - Lapse on the part of Superintendent of Central Excise and Customs - disciplinary proceedings have been initiated against the petitioner. - a penalty of ₹ 1,74,940/- has been imposed on the petitioner under Section 112A(ii) of the Customs Act and a penalty of ₹ 5,50,10,690/-, under Section 104AA of the Customs Act. - Held that - The question of limitation is not a pure question of law, but a mixed question of fact and law. Even assuming without admitting that the submissions made by the learned Senior counsel for the petitioner is correct and that Section 155(2) of the Customs Act, would stand attracted still it has to be seen as to what would be the starting point of limitation. This exercise cannot be made in a Writ Petition. This Court could have rendered a finding on the said issue, but refrains from doing so, as it would prejudice the petitioner at the time of filing the appeal, as this Court is fully convinced that the Writ Petition cannot be entertained as serious, disputed and complicated questions of fact are involved and therefore, the petitioner should be necessarily relegated to avail the appellate remedy provided under the Customs Act. Accordingly, the Writ Petition is dismissed as not maintainable, giving liberty to the petitioner to prefer an appeal before the Appellate Authority and while computing limitation, the period between 11.07.2016, till the receipt of the certified copy of this order shall stand excluded - Decided against the appellant.

Summary

Issues Involved:
1. Legality of the suspension and disciplinary proceedings against the petitioner.
2. Validity of the penalties imposed under Sections 112(a)(ii) and 114AA of the Customs Act.
3. Allegations of sample substitution and tampering.
4. Admissibility and credibility of statements recorded under Section 108 of the Customs Act.
5. Applicability of Section 155(2) of the Customs Act regarding limitation.
6. Availability and exhaustion of alternative remedies.

Issue-wise Detailed Analysis:

1. Legality of the Suspension and Disciplinary Proceedings:
The petitioner, a Superintendent of Central Excise and Customs, was placed under suspension by the Commissioner of Central Excise, Coimbatore, on 04.02.2014. The Suspension Review Committee later revoked the suspension effective 05.11.2015, and disciplinary proceedings were initiated. The petitioner challenged the order-in-original dated 29.04.2016, which imposed penalties under Sections 112A(ii) and 104AA of the Customs Act.

2. Validity of the Penalties Imposed:
The Additional Commissioner of Customs, Coimbatore, imposed a penalty of ?1,74,940/- under Section 112A(ii) and ?5,50,10,690/- under Section 104AA of the Customs Act. The petitioner was accused of facilitating the substitution of samples, which led to the penalties. The impugned order found the petitioner guilty of abetting the offense under Section 112 of the Customs Act.

3. Allegations of Sample Substitution and Tampering:
The case involved the import of goods declared as Carbon Black Feed Stock (CBFS) by M/s. Visal Lubetech Corporation. Samples were drawn on 30.12.2013 and sent for testing. The Assistant Commissioner of Customs suspected tampering when the Central Laboratory returned the samples, leading to an investigation by the Customs Intelligence Unit (CIU). The petitioner admitted in his statement on 27.01.2014 to having facilitated the substitution of samples, although he later claimed the statements were made under coercion.

4. Admissibility and Credibility of Statements:
The petitioner contended that his statements were recorded under threat and coercion, and thus, should not be relied upon. However, the respondent argued that statements recorded under Section 108 of the Customs Act do not require corroboration and are admissible in evidence. The impugned order found the petitioner's defense lacking credibility, and the statements were deemed sufficient to establish the petitioner's involvement in the substitution of samples.

5. Applicability of Section 155(2) of the Customs Act Regarding Limitation:
The petitioner argued that the proceedings were barred by limitation under Section 155(2) of the Customs Act, as the show cause notice was issued beyond three months from the accrual of the cause. The court noted that the question of limitation is a mixed question of fact and law, and this issue was not clearly raised during the initial proceedings. The court refrained from making a finding on this issue, suggesting it should be addressed in an appeal.

6. Availability and Exhaustion of Alternative Remedies:
The court emphasized that the petitioner should have availed the alternative remedy of appeal provided under the Customs Act. Citing precedents, the court held that in tax matters, statutory remedies should not be bypassed unless there are compelling reasons. The court dismissed the writ petition as not maintainable, directing the petitioner to pursue the appellate remedy.

Conclusion:
The writ petition was dismissed, with the court directing the petitioner to file an appeal before the Appellate Authority. The period between 11.07.2016 and the receipt of the certified copy of the order was excluded from the limitation period for filing the appeal. The court found that serious, disputed, and complicated questions of fact were involved, necessitating the exhaustion of the statutory appellate remedy.