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2019 (8) TMI 143 - HC - CustomsSmuggling - 5 kgs of gold concealed in ballot box - gold smuggled under the guise of importing 200 numbers of Sony brand LED TV sets - alternative remedy - HELD THAT - It could be seen from the affidavit filed in support of the Writ Petition that challenging the order in original, the appellant has approached the writ jurisdiction without exhausting the alternative remedy available under the statute. It could be further seen that the appellant had not raised any special circumstances before the learned Single Judge to invoke Article 226 of the Constitution of India when there being an efficacious alternative remedy available under the statute. This Court is of the opinion that the appellant ought to have filed an appeal invoking Section 128 of the Customs Act, 1962, rather than invoking Article 226 of the Constitution of India, despite there being an alternative and efficacious remedy available under the statute - It is made clear that when the statute prescribes certain mode of approaching the authorities by way of an appeal, the same shall not be dispensed with by invoking Article 226 of the Constitution of India, unless and otherwise, the person approaching proves prima faciely the special circumstances that warrants invoking jurisdiction under Article 226 of the Constitution of India. Appeal dismissed.
Issues Involved:
Challenge to order-in-original under Customs Act, 1962; Breach of principles of natural justice; Availability of alternative remedy under Customs Act; Invocation of Article 226 of the Constitution of India; Jurisdiction of the writ court. Detailed Analysis: 1. Challenge to Order-in-Original under Customs Act, 1962: The appellant challenged the order-in-original passed by the second respondent, which involved the seizure of gold bars and Sony LED TV sets. The order proposed confiscation of the items under various sections of the Customs Act, 1962, and imposed penalties accordingly. 2. Breach of Principles of Natural Justice: The appellant contended that the second respondent breached the principles of natural justice while passing the impugned order. It was argued that the investigating department did not properly investigate the appellant's status as a name lender for the import of TV sets. 3. Availability of Alternative Remedy under Customs Act: The learned Single Judge dismissed the writ petition citing the availability of an alternative remedy under the Customs Act. The appellant's failure to exhaust this remedy before approaching the writ court was a key factor in the judgment. 4. Invocation of Article 226 of the Constitution of India: The appellant invoked Article 226 of the Constitution of India in the writ jurisdiction, challenging the validity of the order-in-original. The argument was made that despite the availability of an alternative remedy, exceptional circumstances warranted the writ court's intervention. 5. Jurisdiction of the Writ Court: The appellant argued that the writ court had jurisdiction to entertain and quash the proceedings when an order was passed under surmises and conjunctures. However, the court emphasized the importance of exhausting statutory remedies before invoking Article 226. In the final analysis, the court upheld the decision of the learned Single Judge, emphasizing that the appellant should have pursued the appeal provision under Section 128 of the Customs Act, 1962, instead of directly approaching the writ court. The judgment highlighted the necessity of proving special circumstances to invoke Article 226 and reiterated the importance of following statutory procedures. Consequently, the Writ Appeal was dismissed, and the appellant was directed to file an appeal before the Commissioner of Appeals within 30 days.
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