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TMI Blog2014 (9) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority. When an issue in relation to right to property is evaluated, the Adjudicating Authority was bound to consider such aspects before taking a cursory approach by forming an opinion that the property belonged to the 3rd respondent. It might be an instance where the 3rd respondent was carrying on the business of running the unit in the property belonging to M/s. Oceanic Products Exporting Company. But, that does not mean that the 3rd respondent has title to the property. - Very initiation of proceedings against the petitioners were without jurisdiction and the said proceedings are liable to be quashed. - Decided in favour of assessee. - W.P. (C). No. 18056 of 2013(F) - - - Dated:- 23-9-2014 - A.M. Shaffique, J. Shri A.V. Thomas, Senior Advocate, Smt. M.M. Jasmin Nidhi Sam Johns, Advocates, for the Petitioner. Shri P. Parameswaran Nair, A.S.G., for the Respondent. JUDGMENT This writ petition is filed seeking for a declaration that the first petitioner/partnership firm and its partners have no obligation to pay any amount to the respondents in terms with Ext. P8 notice and Ext. P10 order and for quashing the same. 2. Facts involved in the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omin Antony purchased 6 cents of property from one Akhil Johny who is a purchaser from the firm as per sale deed No. 3679/2003. It is further stated that at the time when they purchased the property, the unit was not functioning in the property as the same was closed several years back when the electricity connection was dismantled and the Factories and Boilers Department had withdrawn the licence. It is further contended that as far as the 1st petitioner is concerned, it has repaired and renovated the buildings, new machineries were purchased and installed and the unit started functioning afresh. According to them, they have no connection whatsoever with the 3rd respondent. The owners have purchased the property from a partnership firm M/s. Oceanic Products Exporting Company and not from the 3rd respondent. On this basis, it was contended that the petitioners have no obligation to pay any amount to the 2nd respondent, as demanded. 3. By Ext. P10 order, dated 4-7-2013, the 2nd respondent has directed 3rd respondent and its Directors to pay the department penalty of ₹ 4,01,77,788/-. Further, the 1st petitioner and its partners have also been made liable to pay the penalty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of the 2nd respondent to issue the show cause notice against the petitioners to impose penalty on them. It is therefore, argued by the learned senior counsel based on judgment of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 81] that in spite of the existence of alternate remedy, of filing an appeal under the Statute, it is open for the petitioners to invoke jurisdiction under Article 226 of the Constitution, if the authority, against whom the writ is filed, is shown to have acted without jurisdiction. Another judgment relied upon is Popcorn Entertainment and Another v. City Industrial Development Corporation and Another [2007 (9) SCC 593]. In the said judgment, the Supreme Court, by following the judgment in Whirlpool Corporation (supra) held that if the action of the respondent is illegal, or in violation of the principles of natural justice or if the petitioners fundamental rights have been violated, there is no necessity to relegate the petitioner to avail the alternate remedy. 8. In the case on hand, the petitioners have a contention that the entire proceedings initiated by the 2nd respondent is without jurisdiction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sand rupees or more than five times the value of the goods or services or technology in respect of which such declaration, statement or document had been submitted, whichever is more. (4) Where any person, on a notice to him by the adjudicating Authority, admits any contravention, the Adjudicating Authority may, in such class or classes of cases and in such manner as may be prescribed, determine, by way of settlement, an amount to be paid by that person. (5) A penalty imposed under this Act may, if it is not paid by any person, be recovered by any one or more of the following modes, namely - (a) the Director General may deduct or require any officer subordinate to him to deduct the amount payable under this Act from any money owing to such person which may be under the control of such officer; or (b) the Director General may require any officer of customs to deduct the amount payable under this Act from any money owing to such person which may be under the control of such officer of customs, as if the said amount is payable under the Customs Act, 1962 (52 of 1962); or (c) the Director General may require the Assistant Commissioner of Customs or De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty is paid or recovered, as the case may be. (8) Where any contravention of any provision of this Act or any rules or orders made thereunder or the foreign trade policy has been, is being, or is attempted to be, made, the goods (including the goods connected with services or technology) together with any package, covering or receptacle and any conveyances shall, subject to such conditions and requirements as may be prescribed, be liable to confiscation by the Adjudicating Authority. (9) The goods (including the goods connected with services or techno-logy) or the conveyance confiscated under sub-section (8) may be released by the Adjudicating Authority, in such manner and subject to such conditions as may be prescribed, on payment by the person concerned of the redemption charges equivalent to the market value of the goods or conveyance, as the case may be. 11. Show cause notice is issued under Section 11. Under Section 11(2) a liability can be imposed only on a person who makes or abets or attempts to make any export or import in contravention of any provision of the Act or any Rules or Orders made thereunder. If the penalty is not paid, provision is made under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority proceeded on the basis that the property belongs to the 3rd respondent. Third respondent is a company registered under the provisions of the Companies Act, whereas Oceanic Products Exporting Company is a partnership firm who had original ownership in respect of the property. They have, in turn, sold the property to the persons aforementioned. Therefore, it is not a case where the 3rd respondent was the owner of the property. This aspect of the matter was conveniently omitted to be noticed or considered by the Adjudicating Authority. When an issue in relation to right to property is evaluated, the Adjudicating Authority was bound to consider such aspects before taking a cursory approach by forming an opinion that the property belonged to the 3rd respondent. It might be an instance where the 3rd respondent was carrying on the business of running the unit in the property belonging to M/s. Oceanic Products Exporting Company. But, that does not mean that the 3rd respondent has title to the property. 15. For all the above reasons, I am satisfied that the very initiation of proceedings against the petitioners were without jurisdiction and the said proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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