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TMI Blog2016 (7) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... not be entertained as serious, disputed and complicated questions of fact are involved and therefore, the petitioner should be necessarily relegated to avail the appellate remedy provided under the Customs Act. Accordingly, the Writ Petition is dismissed as not maintainable, giving liberty to the petitioner to prefer an appeal before the Appellate Authority and while computing limitation, the period between 11.07.2016, till the receipt of the certified copy of this order shall stand excluded - Decided against the appellant. - W. P. No. 24350 of 2016 - - - Dated:- 22-7-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. AR. L. Sundaresan Sr., counsel for Ms.D.Naveena For the Respondent : Mr. A. P. Srinivas Standing counsel ORDER Heard Mr.AR.L.Sundaresan, learned Senior counsel appearing for Ms.D.Naveena, learned counsel appearing for the petitioner and Mr.A.P.Srinivas, learned Standing counsel appearing for the respondent. 2. The petitioner is working as a Superintendent of Central Excise and Customs at Coimbatore and he has come to adverse notice of the Department and was placed under suspension by order passed by the Commissioner of Central Excise, Coi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had recorded statements of all the concerned individuals under Section 108 of the Customs Act. The petitioner, who was working as Superintendent, had given a statement on 25.01.2014, stating that he was present during the drawl of sample on 30.12.2013 and that the importer might have replaced the sample drawn with pre-filled cans at the point of drawl. However, he denied having helped the importer in substitution of the sample. A second statement was recorded from the petitioner on 27.01.2014, wherein he stated to have admitted that he had received the pre-filled samples from the importer's son and he had handed over the original samples taken from the containers to the importer's son and substituted samples were handed over to the Inspector, ICD, Irugur. Further, in the statement, the petitioner is said to have stated that he was informed that the goods imported are inferior variety of CBSF and that is why necessity was there for replacement of the sample. Subsequently, sample was taken and properly sealed and sent to the Central Laboratory, who had certified that the samples were base oil vide report dated 01.06.2014. For the purpose of this case, it may not be necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dous pressure and coercion from the department to accept the allegations against him and the letter given by the petitioner dated 10.06.2016, will clearly prove that the allegations made against the petitioner are biased and their exists a pre-conclusion and preconceived notion against the petitioner. Further, it was contended that in the findings rendered in the impugned order, the respondent has stated that the petitioner's statement, dated 27.01.2014, was corroborated by deposition of Baskar, Balakrishnan and Murugesa Pandian and of which the statements of Baskar and Balakrishnan were relied on in the show cause notice. It is submitted that if those statements are perused they have not deposed that the petitioner has substituted the samples and they have deposed that at the time of drawing the samples the colour is sticky black. The petitioner would state that even this is not correct since during subsequent verification, the officers found it is greenish. Therefore, the learned counsel endeavoured to submit that there is no evidence to the effect that the petitioner changed the samples and mens rea was not established. In the affidavit filed in support of the Writ petition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance was placed on the decision of the Constitution Bench of the Hon'ble Supreme Court in the case of UOI vs. T.R.Verma reported in AIR 1957 SC 882 and the decision of the Hon'ble Division Bench of the Allahabad High Court in the case of Rama Dairy Products Ltd., vs. Secretary, UP Krishi Utpadan, reported in 2004 138 STC 508 and submitted that the remedy provided under the statute must be followed and the Writ should not be generally entertained unless the statutory remedies are exhausted. 7. On facts, it was pointed out that the importer was not sure about the non-hazardous nature of the cargo and tried to substitute the samples and the test result is valid only to the extent of proving what the samples are, and does not have any evidentiary value to prove that no substitution of the samples. It is further submitted that the barrels were inspected in the presence of the officers and representatives of the importers and the CHA. The appearance of the contents of every barrel was recorded in the inventory. The cargo is still in the safe custody of the custodian of ICD, Irugur. The slight variation in the description, such as dark green or black does not affect the identit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 155(2) of the Customs Act does not grant protection to all and it merely prescribes a period of limitation just like the Limitation Act, generally prescribed a period of limitation for all actions. Further, it is submitted that Section 40(1), applies only to Government and officer of Government and Section 40(2) applies to Government, officers of Government and others also. Further, it is submitted that the test of good faith has to be found only in Section 40(1) and it is not applicable to Section 40(2). The other two grounds, which have been raised by the petitioner to by-pass the appeal remedy is stating that the documents have not been furnished and copies of the statements have not been furnished. 11. In Dr.K.Nedunchezhian vs. The Deputy Commissioner of Income Tax, Central Circle, Salem reported in (2005) 2 MLJ 243, the Hon'ble First Bench of this Court was considering a matter arising under the Income Tax Act in which the Court framed a question as to whether in Tax matter when alternate remedy is provided in the Act itself should there be short circuiting of the statutory remedy. This issue was considered after elaborately referring to several decisions and it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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