2016 (10) TMI 265 - HC - Customs

Jurisdiction of Assessing Officer - validity of order of assessment - requirement on the part of custom authorities to serve notice under Section 28 of the Customs Act, 1962 prior to assessing the liability of the petitioner - statutory remedy of appeal available to petitioner to file appeal within the prescribed time limit - Held that - The alleged non-issuance of notice under Section 28 itself does not vitiate the entire proceedings. It cannot be said that the assessing officer is acting without jurisdiction by not issuing an appropriate notice under Section 28 of the Act of 1962 in determining the liability of an assessee. The petitioner had ample opportunity to have such alleged irregularity corrected in a statutory appeal. The petitioner did not file the same within the time prescribed. A litigant who has allowed his alternative statutory remedy to go bye without affording any reasonable explanation for the same, should not be allowed to file a writ petition to assail such action - writ petition dismissed - decided against petitioner.

Summary

Issues:
Assessment of liability without notice under Section 28 of the Customs Act, 1962; Failure to file appeal within prescribed time period; Jurisdiction of the assessing officer; Availability of alternative statutory remedy; Writ of certiorari under Article 226 of the Constitution of India.

Analysis:
The petitioner challenged an order by the Customs, Excise and Service Tax Appellate Tribunal for assessing liability without issuing a notice under Section 28 of the Customs Act, 1962. The petitioner contended that the customs authorities acted unilaterally without notice, leading to the dismissal of the subsequent appeal due to missed deadlines. The petitioner argued that a writ of certiorari should be issued citing AIR 1986 SC 85 (State of U.P. Vs. Md. Nooh) to rectify errors or irregularities by the tribunal.

The customs authorities, on the other hand, argued that the order was appealable to the Division Bench under Section 130 of the Customs Act, 1962. They emphasized that the petitioner failed to utilize the statutory remedy within the specified time frame, suggesting that the writ Court should not intervene. The assessing officer's jurisdiction was also questioned, with the authorities asserting that the alleged irregularity did not warrant interference.

The Court considered both sides' arguments and found that the petitioner did not file an appeal within the prescribed time, despite being aware of the assessment order. It was noted that the non-issuance of a notice under Section 28 did not invalidate the proceedings entirely. The Court highlighted that the petitioner had the opportunity to rectify any irregularities through a statutory appeal, which was not pursued within the stipulated period.

Referring to Md. Nooh case, the Court clarified that a writ is maintainable only if the tribunal acts with a patent lack of jurisdiction or adopts a procedure so illegal that it leaves an indelible mark of infirmity. Since the petitioner had the right to appeal to the Division Bench under Section 130 of the Customs Act, and failed to do so without explanation, the Court found no merit in the writ petition and dismissed it, with no costs imposed.