9911796707
TMI Blog2010 (2) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and in this situation the argument that the sale becomes void, etc., in terms of the provisions of Section 150 of the Act becomes more an academic question than warranting examination in the present case. Thus allow this writ petition, set aside the order passed by the Tribunal and restore the order passed by the adjudicating authority in its entirety. - Writ Petition No. 43173 of 2002 (T-TAR) - - - Dated:- 10-2-2010 - D.V. Shylendra Kumar and N. Ananda, JJ. Shri Y. Hariprasad, CGSC, for the Petitioner. Shri B.G. Chidananda Urs, for M/s. Urs. Anand, Advocates, for the Respondent. ORDER Writ petition by the Commissioner of Customs, Bangalore under Article 226/227 of the Constitution of India, directed against the order dated 12-4-2001 [copy at Annexure-E to the writ petition] passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), South Zonal Bench, Bangalore in Appeal No. C/641/2000, relating to the respondent-assessee [2001 (138) E.L.T. 519 (Tribunal)]. 2. The Commissioner, in preferring such a writ petition, had not only not availed of the statutory remedy, which was otherwise available against an order of this nature in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the Articles 226 and 227 of the Constitution of India, and has sought to urge several grounds including the grounds that the tribunal had chosen to interfere in a matter, where persons involved with goods such as mulberry raw silk, admittedly of foreign origin viz., Korean origin, had failed to establish legitimate importation of the seized goods such as 66 bales of mulberry raw silk yarn of Korean origin and consequently, the Commissioner, in terms of the adjudication order dated 31-7-2000 (copy at Annexure-D to the writ petition), had not only confiscated the goods in terms of the provisions of Section 111(d) of the Act but also had chosen to impose personal penalties on the respondent under Section 112(b) of the Act. 4. It is because of this unusual manner of the Commissioner having approached this Court by invoking writ jurisdiction to get over the order passed by the Tribunal, reversing the order of the adjudicating authority and directing not only release of the confiscated goods but also setting aside the personal penalties on the respondent, the respondent has raised a preliminary objection of tenability of this writ petition and more so, when the Commissioner has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68/-, the amount was directed to be appropriated to Government of India and a personal penalty at ₹ 5.00 lakh was imposed on the respondent herein with a further personal penalty of ₹ 2.00 lakh on the other person Bechan Misra, also under Section 112(b) of the Act, who came on the scene as the person who was found in custody of the goods in the godown of the respondent herein and who, according to the version of the respondent and one Hukkumchand, was the real buyer though certain invoices produced by the respondent sought to make out a case of sale in favour of said Hukkumchand. 8. It is against this adjudication order, both the respondent and said Bechan Misra preferred separate appeals before the Tribunal. The Tribunal, which went into great detail of the grounds urged in support of the appeals, took the view that the appellants had made good their versions of legitimate importation of the goods of foreign origin and their version that the goods having been imported by one M/s. Prashant Glass Works at Varanasi should have been accepted and dispatch of the goods particularly 66 bales silk yarn is part of the lawful importation by M/s. Prashant Glass Works at Varana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wake of the Commissioner having not availed of the statutory remedy, the writ jurisdiction should not be permitted to be availed of by the Commissioner for the very purpose which the Commissioner could have achieved by seeking for a reference in terms of Section 130A of the Act. 13. Submission of learned counsel for the respondent is on the premise of the delay and laches i.e. the writ petition is preferred more than one year seven months after the expiry of the period of limitation as provided in terms of Section 130A of the Act and that no premium can be placed on such an indolent act of the Commissioner - a statutory authority - and that too to the detriment of the respondent, in whose favour certain rights have been conferred in terms of the order passed by the Tribunal such as not only to allow the claim to the confiscation of goods as his own goods, but also having relieved him of the liability of personal penalty, due to passage of time i.e. by the expiry of the period for seeking reference in terms of Section 130A of the Act, and such rights having crystallized and having attained finality, this Court should not entertain this writ petition filed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderably restricted and the salutary principle while exercising writ jurisdiction is to decline to exercise the jurisdiction whenever the person invoking the writ jurisdiction has a statutory remedy of appeal, and more so, if the statutory remedy is one to the High Court itself and it is for this purpose, the judgment of the Supreme Court in Titaghur Paper Mills case (supra) is relied upon and to point out that the petitioner-Commissioner of Customs who had a statutory remedy in terms of Section 130A of the Act for seeking a reference to this Court had either failed to seek for a reference or neglected to seek for one and such a person should not be permitted to come back to this Court through the backdoor method of presenting a petition under Articles 226 and 227 of the Constitution of India. 18. It is also submitted by placing reliance on the judgment of the Supreme Court in Hongo India (P) Ltd., case (supra), that when a reference under Section 130A of the Act is not possible after the expiry of a period of 180 days from the date of the order passed by the Tribunal and if the Commissioner is prohibited from invoking the jurisdiction of this Court even under Section 130A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act at the relevant point of time, submission is that a reference in terms of Section 130A of the Act are up to the expiry of 180 days which is questioned in the writ petition could not have been subject matter of reference under Section 130A of the Act and if so the writ petition should not be entertained, etc. 22. We are quite conscious of the judgment of the Supreme Court and even while the Supreme Court had observed in this judgment that the question as to whether the provisions of Section 5 of the Limitation Act is to be made applicable or otherwise is a question which has to be examined in the context of each enactment and even assuming that the Customs Act is different from the Central Excise Act, we do accept the argument that the ratio laid down by the Supreme Court in Hongo India (P) Ltd., case (supra) will be equally applicable to the provisions of Section 130A of the Act. 23. But, the question before us is not as to whether we should entertain a reference in terms of the provisions of Section 130A of the Act, but what should be done with reference to the writ petition that is before us. 24. Though Sri Chidananda Urs, learned counsel for the respondent ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the jurisdiction, the jurisdiction being a discretionary jurisdiction and within the discretion of the High Court, it is only the manner of exercise of the jurisdiction which is sought to be regulated or guidelines provided for. Ultimately, as to whether the discretion is to be exercised in favour of the petitioner invoking the jurisdiction is an aspect which essentially depends only on the facts and circumstances of the particular case, no doubt in the background of the relevant statutory provisions governing the case on hand, but ultimately the entertainment of the petition is always in the sound discretion of the High Court and that discretionary jurisdiction has not been taken away by any judgment of any Court nor can it be so. It is the jurisdiction conferred on the High Courts under the Constitution and until and unless the Constitution itself is amended to place an embargo or embargo is in terms of Part XIVA of the Constitution of India and to the limited extent interpreted and as declared by the Supreme Court in L. Chandra Kumar s case (supra), no further limitation or impediment can be read into. 26. It is for these reasons and particularly, having regard to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this aspect of the matter, on a perusal of the order passed by the Tribunal, we find that the Tribunal has not only referred to inapplicable statutory provisions to the fact situation and even wrongly applied or understood the statutory provision, but also has called in aid authorities not relevant to the fact situation to reverse the order passed by the adjudicating authority. 30. The plethora of cases relied upon by the appellant before the Tribunal and dealt with by the Tribunal to justify its conclusion, in our considered view, are not cases relevant for the facts of the present case and particularly the case law that has developed in the context of the provisions of Section 123 of the Act which is nothing but a rule of procedure. It is nobody s case in the present situation that the order passed is one with reference to the provisions of Section 123 of the Act. In fact, the presumption in terms of Section 123 of the Act is not even needed in the present situation as it is also the case of the respondent that the goods in question were of foreign origin and the stand was that it had been licitly imported. The Tribunal referring to the case law and the legal position that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in personam a stand of the respondent can have some bearing. 34. In so far as the character of the goods whether it remains a prohibited goods or gets out of this taint and can be characterized as a normal goods is concerned, it is dependent on the manner in which it has entered the country and it has gone through. Here again, the inconsistent stand on the part of the respondent in claiming the ownership of the goods at one breadth and later disowning it by saying that the goods had already been sold to Hukkumchand but found in the godown of other person namely Bechan Misra and said Bechan Misra claiming that he was only an agent for the respondent and such inconsistent statements only reveal a clear scheme of the cover up operation amongst the three persons involved and the inconsistent stands not only with regard to the ownership of the goods which is emphatically stated in the reply as under : .Thus, by no stretch of imagination my client will be the owner of the goods. but the next sentence reading, The confiscation in the hands of my client is wrong and unjustifiable. only betrays the uncertainties of the nature of the goods and also the confused state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different purposes and while for the purpose of confiscation would lay claim to the goods and would like to claim it back if the order of confiscation should fall to ground, when it comes to the question of levying penalty as a person involved with dealing of a prohibited goods would conveniently resort to the stand of the goods having been sold to another person and that person in turn also having further sold, he should not be penalized, etc. 38. The defence of limitation coming in the way of the examination of the correctness or quality of the order of the Tribunal in the jurisdiction of this Court under Article 227 of the Constitution of India, in our opinion, cannot stand scrutiny for the reason that the order for confiscation is an order passed in rem and in larger public interest, for discouraging or dissuading violations of the Customs Act and it is also fully justified in the present fact situation having regard to the conduct of the respondent and other persons involved with the goods with their inconsistent/shifting stand and alternatively owning or disowning the goods. 39. A proceeding for confiscation is not necessarily in the nature of an adversary proceeding no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of C. Ex., Calcutta-II v. Cacutta Trade Corporation [2002 (143) E.L.T. 259 (Cal.)] The State of Assam and Others v. Garodia Brothers Another [1978 (41) STC 402 (Gau.)] The Assistant Commissioner of Taxes and Another v. Ranglal Rameswar Saraugi [1978 (41) STC 408 (Gau.)] Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Others [AIR 1962 SC 1044] Chief Conservator of Forests, Govt. of A.P. v. Collector and Others [AIR 2003 SC 1805] Union of India v. Kamlakshi Finance Corporation Limited [1991 (55) E.L.T. 433 (SC)]. 42. This submission we are rejecting outright for the reason that the writ jurisdiction is not a statutory jurisdiction, it is a jurisdiction conferred on the High Court under Article 226/227 of the Constitution of India and the exercise is in the discretion of the High Court and not either at the discretion of a respondent or a person who wishes that the jurisdiction should not be exercised to his detriment, etc. 43. Be that as it may, if the Commissioner of Customs becomes a petitioner in a petition under Article 226/227 of the Constitution of India, it does not partake the character of a petition not permitted in law or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 (131) E.L.T. 203 (T)]. 48. It is not necessary for us to go into these orders of the Tribunal, as in the first instance, it is highly improper to cite an order of the Tribunal before the High Court and secondly while it does not bind the High Court nor can have any persuasive value. We have, nevertheless, examined these decisions for whatever they are worth, but, we find that even on the discussion as indicated above, the order of the Tribunal is one which warrants for correction in this writ petition for the reasons already indicated above. It is therefore, we are of the view that these decisions in no way advances the case of the respondent. 49. One another contention urged by Sri Chidananda Urs, learned counsel for the respondent is regarding the sale of the seized goods even before passing an order of confiscation and submission is that it has invalidated the sale and therefore if the goods are required to be restored in terms of the order passed by the Tribunal, it is no good for the department to say they can instead hand over the sale proceeds to the respondent in lieu of the goods themselves. 50. It is also submitted with reference to the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
