2019 (9) TMI 847 - HC - Customs

Maintainability of petition - alternate remedy of appeal - Confiscation - Ketamine Hydrochloride - Indian Currency - Foreign Currency - Gold Jewellery - adjudication passed belatedly - Demand based on confessional statements - HELD THAT - In this case, the very order of adjudication, while discussing the narration of the facts, the order of adjudication, would disclose that this is not the matter where this Court can exercise the discretionary jurisdiction and entertain the writ petition, solely on the technical reason that the order of adjudication came to be passed belatedly. It is seen that based on intelligence that a gang was attempting to smuggle Ketamine Hydrochloride in bulk quantity and have transported the same to Chennai from Mumbai, the Officers of Directorate of Revenue Intelligence (DRI), Chennai, intercepted one S.P.Rajapandian, the main person in the gang at the Domestic Airport, who was travelling by flight IC 173 from Mumbai to Chennai after booking the Ketamine in various transports in the guise of lactose and other medicines and who was also carrying the lorry transport Receipts with him on 05.08.2010. The narration of the facts, thus, goes further and link the role of the petitioner herein as well in this illegal transaction, based on his confessional statement dated 01.10.2010. This Court is of the view that when such serious allegation was made against the petitioner and others and such allegation has also resulted in passing the impugned order of adjudication, I do not propose to entertain this writ petition only on the technical ground of delay in passing the order of adjudication, more particularly, when the case laws relied on by the learned Senior Counsel are distinguishable on facts and circumstances. This writ petition need not be entertained, as the petitioner is having an effective alternative remedy by way of filing an appeal before the concerned Appellate Forum to challenge the order of adjudication - petition dismissed.

Summary

Issues Involved:
Challenge to order of confiscation under Customs Act, 1962; Challenge to imposition of penalties under Customs Act, 1962; Delay in passing order of adjudication; Availability of statutory appellate remedy.

Analysis:

Challenge to order of confiscation under Customs Act, 1962:
The writ petition challenged the order of confiscation of Ketamine Hydrochloride, Indian and foreign currency notes, and gold jewelry under Sections 113(d)(e)(h) and (i) and Section 121 of the Customs Act, 1962. The petitioner argued that the delay in passing the order of adjudication vitiates the entire proceedings. However, the judge noted that a statutory appellate remedy is available before the Customs, Excise and Service Tax Appellate Tribunal, and the petitioner should have approached that forum first. The judge emphasized that the appellate authority is the fact-finding authority and can consider all grounds in detail, making it an effective alternative forum for the petitioner to raise their concerns.

Challenge to imposition of penalties under Customs Act, 1962:
The order also imposed a penalty of ?75,00,000 on the petitioner under Section 114 of the Customs Act, 1962. The judge highlighted that the petitioner can challenge the penalties imposed by filing an appeal before the Appellate Tribunal. The judge emphasized that approaching the appellate forum first is the appropriate course of action in fiscal matters, and the petitioner's attempt to short circuit the process by filing a writ petition was not justified.

Delay in passing order of adjudication:
The main contention raised was the inordinate delay in passing the order of adjudication, which was after 8 years from the date of issuance of the show cause notice. The petitioner argued that such delay vitiates the proceedings. However, the judge noted that the delay issue depends on the facts of each case and cannot be applied as a general principle. The judge observed that the delay in this case did not warrant interference solely on that ground, especially considering the seriousness of the allegations and the involvement of the petitioner in the illegal transaction.

Availability of statutory appellate remedy:
The judge reiterated that the petitioner had an effective alternative remedy by filing an appeal before the concerned Appellate Forum to challenge the order of adjudication. The judge dismissed the writ petition, granting liberty to the petitioner to pursue the remedy before the Appellate Forum. The judge emphasized that the Appellate Forum would decide the appeal on its merits and in accordance with the law, independent of the observations made in the order.

In conclusion, the judgment highlighted the importance of following the statutory appellate process in challenging orders under the Customs Act, 1962, and emphasized the need to approach the Appellate Tribunal for redressal of grievances before seeking recourse through a writ petition.