2018 (8) TMI 1703 - HC - Customs

Delay in filing petition - Section 28 of Customs Act - Penalty u/s 114 (i) of the Customs Act 1962 - imposition of penalty beyond a period specified under Section 28 of the Act - Held that - In the present case there is a period of limitation which has been provided under the Act and whether the same applies only for demand of customs duty or extends to imposition penalty is a question which would entirely depend upon the interpretation of the Act by the Authorities under the Act. Therefore it is not a case where the authorities under the Act are required to determine the issue outside the four corners of the Act. This Petition cannot be entertained on account of laches and more particularly also on account of fact that Petitioner has alternative remedy available under the Act of filing an Appeal to the Appellate Authorities - petition dismissed - decided against petitioner.

Summary

Issues:
Challenge to order confirming penalty under Customs Act, 1962; Delay in filing the petition; Availability of alternate remedy under the Act.

Issue 1: Challenge to order confirming penalty under Customs Act, 1962

The petitioner challenged an order dated 30th January, 2012, confirming a penalty of ?15 lakhs under Section 114(i) of the Customs Act, 1962. The petitioner had already appealed to the Commissioner of Customs (Appeals) and the Tribunal but failed to get relief. The petitioner argued that the penalty was imposed beyond the five-year period provided under Section 28 of the Act for raising demand of customs duty. The petitioner relied on the decision of the Supreme Court in a similar case to support the argument that the imposition of penalty beyond the specified period is invalid. The court noted that the authorities under the Act are required to interpret the Act's provisions, and the issue of the period of limitation for imposing a penalty would depend on the Act's interpretation by these authorities.

Issue 2: Delay in filing the petition

The court pointed out that the petition was filed on 18th March, 2016, while the impugned order was dated 30th January, 2012, without any explanation for the delay. The petitioner argued that there was no delay as appeals were filed with the authorities under the Act, and there was no laches on their part. However, the court found that there was a delay of 10 months between the rejection of the appeal by the Tribunal and the filing of the petition, without any explanation for this delay. Due to this delay alone, the court was not inclined to entertain the petition.

Issue 3: Availability of alternate remedy under the Act

The court noted that an alternate remedy was available to the petitioner under the Act by filing an appeal to the Appellate Authorities. The petitioner had already invoked this alternate remedy but failed to succeed before the Appellate Authorities, leading to the filing of the petition. The court emphasized that the statutory appeal from the Tribunal's order was available to the petitioner under Section 130 of the Act. Considering the availability of this efficacious alternate remedy, the court dismissed the petition on the grounds of laches and the existence of an alternative legal recourse.

In conclusion, the High Court of Bombay dismissed the petition challenging the order confirming the penalty under the Customs Act, 1962, citing the delay in filing the petition, the availability of an alternate legal remedy under the Act, and the need for interpretation of the Act's provisions by the authorities.