2019 (1) TMI 1292 - HC - Customs

Maintainability of petition - efficacious alternative remedy of appeal - Section 129A of the Customs Act - Held that - Indeed, the Exts.P3 and P4 spell out the procedure for registration of a shipping agent. They do not in explicit terms refer to the mechanism of revoking the registration. But this seeming lacuna does not detain us any longer. For it is well established that an authority having power to do something has, by implication, unless expressly prohibited, the power to undo it. It is an inherent administrative power, subject to statutory stipulations or limitations. Here, though this Court avoids adverting to the merits, the Company and its employees, prima facie, face a grave allegation of fabricating the documents and falsifying the records. I reiterate it is only an allegation, though. Is that alternative remedy efficacious? - Held that - The statutory authorities under the Customs Act, notes the Supreme Court in Kothari Filaments 2008 (12) TMI 28 - SUPREME COURT , discharge quasi-judicial functions. Therefore, an adverse order could affect a person s property and that may be through confiscation, redemption fine, personal fine and so on. In other words, a finding of statutory violation results in civil or evil consequences. So the principles of natural justice must be complied with. Kothari Filaments has gone on to observe that the Act, in the first place, does not prohibit the application of the principles of natural justice. It observes that the existence of grounds for confiscating the goods is a sine qua non for the authorities to issue a notice under Section 124. Without the information to the person concerned about the grounds of confiscation, it would be impossible for that person to defend himself. So the notice under Section 124 must satisfy all the statutory ingredients - the petitioners in both the writ petitions were served with show-cause notices replete with information-true or false, though-and were supplied with the documents they had asked for. Petition dismissed.

Summary

Issues:
1. Maintainability of the writ petitions challenging the order revoking the Company's registration and imposing penalties.
2. Allegations of predetermined show cause notice, violation of principles of natural justice, and departmental bias.
3. Availability and efficacy of alternative remedy under Section 129A of the Customs Act.
4. Compliance with principles of natural justice in the show cause notice and adjudication process.

Issue 1: Maintainability of the writ petitions
The petitioners challenged the order revoking the Company's registration and imposing penalties through writ petitions. The Additional Solicitor General argued that the petitioners have an alternative remedy under Section 129A of the Customs Act before the CESTAT, Bangalore. The petitioners' counsel contended that the writ petitions were maintainable, emphasizing the alleged shortcomings in the show cause notice and the adjudication process. The Court directed the counsel to focus on the preliminary issue of maintainability, leading to detailed arguments on this aspect.

Issue 2: Allegations of predetermined show cause notice, violation of principles of natural justice, and departmental bias
The show cause notice contained elaborate allegations against the Company and its employees, accusing them of using forged documents. The petitioners raised concerns about the predetermined nature of the notice, violation of natural justice principles, and alleged departmental bias in the order. They highlighted issues such as limited access to documents, lack of physical verification during cross-examination, and lack of justification for penalties imposed. The counsel cited various legal precedents to support their contentions regarding procedural irregularities and unfairness in the adjudication process.

Issue 3: Availability and efficacy of alternative remedy under Section 129A of the Customs Act
The Court analyzed the scope of Section 129A, which provides for appeals to the Appellate Tribunal against orders passed by customs authorities. The petitioners argued that the alternative remedy was not efficacious due to delays in Tribunal proceedings and potential hardships faced by the Company. However, the Court held that the Tribunal was empowered to address the issues raised in the writ petitions, making the remedy efficacious. The Court emphasized that systemic delays or infrastructural limitations could not be grounds to bypass the statutory mechanism.

Issue 4: Compliance with principles of natural justice in the show cause notice and adjudication process
The Court examined legal precedents emphasizing the importance of natural justice in quasi-judicial proceedings under the Customs Act. It was noted that fair treatment and adherence to procedural fairness were crucial, especially during show cause proceedings. The counsel's arguments highlighted the need for proper hearing, supply of documents, and transparency in the adjudication process. While acknowledging the petitioners' complaints about inquiry shortcomings, the Court concluded that these issues fell within the purview of the appellate forum. Consequently, the Court dismissed the writ petitions, allowing the petitioners to pursue their remedies before the appellate authority while refraining from delving into the merits of the case.