2016 (10) TMI 266 - HC - Customs

Principles of natural justice - maintainability of a petition when an alternative remedy of appeal available - writ jurisdiction - voluntary statement under Section 108 of the Customs Act, 1962 - Held that - The petitioner being well aware of the proceedings had chosen not to participate therein. The plea of breach of principles of natural justice is therefore, not available to the petitioner. The petitioner has not established that, any fundamental right of the petitioner has been infringed by the Custom Authorities or that, any of the grounds on which a writ petition is maintainable despite availability of an alternative remedy has happened warranting the High Court to intervene - impugned order appealable under Section 129 (e) of the Customs Act, 1962 - writ petition not maintainable - petition disposed off - decided against petitioner.

Summary

Issues involved:
Violation of principles of natural justice in passing the adjudication order by the Commissioner of Customs (Port), Kolkata; Maintainability of a writ petition against the impugned order despite the availability of an appeal as a statutory alternative remedy; Allegation of breach of principles of natural justice by the petitioner; Claim of the petitioner being a non-resident Indian residing in Malaysia; Allegation of evasion of duty by the petitioner and his brother through a transaction disclosed to the Custom Authorities; Availability of an alternative remedy under Section 129(e) of the Customs Act, 1962.

Analysis:
The petitioner challenged an adjudication order by the Commissioner of Customs, alleging a violation of principles of natural justice due to the absence of a show cause notice. The petitioner contended that the writ petition is maintainable despite the availability of an appeal, citing instances where the writ jurisdiction was upheld despite alternative remedies. The Customs Advocate argued that a show cause notice was issued to the petitioner's known address, as evidenced by the petitioner's father receiving the impugned order at that address, thus refuting the claim of no notice.

The court referred to precedents emphasizing that the availability of an alternative remedy does not oust the writ jurisdiction, provided fundamental rights enforcement, failure of natural justice, lack of jurisdiction, or challenging the vires of an Act are involved. In this case, the petitioner, claiming non-resident Indian status residing in Malaysia, had a local address in India linked to his father's residence. The petitioner and his brother were involved in a transaction leading to duty evasion, with the petitioner voluntarily making a statement under Section 108 of the Customs Act.

The court noted that the petitioner was served the show cause notice at the local address provided to the Custom Authorities, and the petitioner's awareness of the proceedings was evident from voluntary statements made. Consequently, the plea of breach of natural justice was deemed invalid. As the petitioner failed to establish the infringement of fundamental rights or grounds for a writ petition despite an available appeal under Section 129(e) of the Customs Act, the court dismissed the writ petition, vacating any interim orders, and made no ruling on costs.