9911796707
TMI Blog2016 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... t from imposing penalty on the concern as well as on the son of the proprietor. 3. The imported filed two bills of entries dated 21.12.2013 and 20.01.2014 at the Inland Container Depot, Irugur, through their Customs House Agent M/s.Nippon Express (India) Pvt., Ltd., for import of certain goods declared as Carbon Black Feed Stock (CBFS), which was stuffed in four and six containers respectively. The importer claimed classification of the goods under Customs Tariff No.28030090 attracting rate of duty of 22.583% and self assessed the amount of duty as Rs. 5,09,161/- and Rs. 9,20,551/- respectively with aggregate amount of duty in respect of both the bills of entry as Rs. 14,29,712/-. In order to verify the correctness of the self assessment and in accordance with the Alert Circular No.12/2013, issued by the Directorate of Revenue Intelligence, samples were drawn on 30.12.2013 and it was sent for testing to the Central Revenue Control Laboratory. The sample was returned by the Central Laboratory on the ground that it was not sealed properly. 4. It was further stated that the Assistant Commissioner of Customs, ICD, Irugur, who was present at the time of drawal of sample on 30.12.2012, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, after noting that the importer in his statement stated that he does not use the goods for the manufacture of Carbon Black and it is used for making lubricants only and taking into consideration the other factors, a show cause notice was issued to the petitioners as well as the Superintendent of Customs one S.Karthikeyan. Proposing among other things, as to why the imported goods should not be reclassified as Base Oil and Rubber Process Oil as the case may be based on the test reports issued by the CRCL, New Delhi, apart from, proposing to revise the assessable value and reclassification of goods and redetermination of the duty with proposal to confiscation the goods and imposed penalty. The petitioner has submitted their objection and an opportunity of personal hearing was granted and the order-in-original was passed. 6. The learned Senior counsel for the petitioner pointed out that test reports have given contrary findings and to demonstrate the same, reference was made to the report, dated 16.09.2014, by the Chief Examiner of the CRCL and it is stated that precisely for this reason, the petitioner sought for cross examination of the person, who submitted the test report a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e First Bench of this Court in the case of Nivaram Pharma Private Limited vs. The Customs Excise and Gold (Control), Appellate Tribunal, South Regional Bench Madras and Ors., reported in (2005) 2 MLJ 246, took note of the various decisions on the said point and held that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative Writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds to do otherwise. At this stage, it is beneficial to refer to the operative portion of the judgment:- 5. It is well settled by a series of decisions of the Supreme Court that particularly in tax matters there should be no short circuiting of the statutory remedies, vide Titaghur Paper Mills Co. Ltd. v. State of Orissa, , Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited, , etc. 6. It is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this Court under Article 226 of the constitution should not be invoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainly needs to be strongly discouraged." 9. In C.A. Ibraham v. ITO, , H.B. Gandhi v. Gopinath & Sons, 1992 (Suppl) 2 SCC 312 and inKarnatak Chemical Industries v. Union of India, the Supreme Court held that where there is a hierarchy of appeals provided by the statute the party must exhaust the statutory remedies before resorting to writ jurisdiction. All these decisions are related to taxing statutes, and are hence apposite to the present context. 10. In Sheela Devi v. Jaspal Singh, and Punjab National Bank v. D.C. Krishna, the Supreme Court held that if the statute provides for remedy of revision or appeal, writ jurisdiction should not be invoked. 11. In Union of India v. T.R. Verma, the Supreme Court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds to do otherwise. 10. In Dr.K.Nedunchezhian vs. The Deputy Commissioner of Income Tax, Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even take note of the same. The person, whom they seek to cross examine is an officer/Government servant, working as a Chemical Examiner in the Central Revenue's Control Laboratory under the control of the Department of Revenue, Ministry of Finance, Government of India. The said officer is not a witness to the proceedings. No statement has been recorded by the Department from such an officer either prior to the issuance of show cause notice or thereafter. Thus, the duty exercised by the Chemical Examiner of the Central Laboratory is in effect discharging a statutory duty and therefore, he is not a witness to the proceedings. The petitioner seek to take advantage of certain observations made by the test report to state that it is inconsistent with the other averments made therein. It is not in dispute that no statement was recorded from the Officer, who submitted the report. In other words, there is no examination in chief , for permitting cross-examination. At best, the report can be taken as it is and the petitioner has to contest his case based on the findings recorded in the report. The petitioner requested an opportunity to cross examine the Officer, who submitted a report. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in wanted to cross examine those witnesses. In the instant case, the officer, who submitted the test report was not examined by the Department nor he is a witness nor any statement has been recorded from him. In fact, the report can be treated as a public record and the contents of the report are a proof to themselves. In such circumstances, the petitioner cannot seek for cross examination of the officer, who gave the report. Therefore, the decision in Thilagarathinam Match Works(supra), does not render any support to the case of the petitioner. 18. With regard to the decision of the Hon'ble Supreme Court in Mattel Toys India Private Ltd.,(supra), once again, the request of the assessee therein was to give opportunity to cross examine the witnesses, whose statement was relied on by the Department and the facts of the present case is clearly distinguishable. 19. In the light of the above discussion, the contention raised by the petitioner that they have to be permitted to cross examine the Chemical Examiner of the Central Laboratory is a misconceived plea. For the above reasons, such a request made by the petitioner was rightly rejected by the respondent by passing a separate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
