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TMI Blog2017 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. The High Court has imposed upon itself certain restrictions one of which is that if an efficacious alternative remedy is available, the High Court would not normally exercise its writ jurisdiction. Principles of Natural Justice - Held that: - The customs law is a complete code by itself. The Customs Act and the Rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code. The order passed by the respondent in this case is an appealable order. Sec. 128 provides for a statutory appeal - Mr. Khaitan argued that this statutory appeal is not an effective remedy since under Sec. 128A(3), the Commissioner (Appeals) cannot remand the matter back to the Adjudicating Officer. Even assuming the Commissioner does not have that power, in my opinion, the same does not make the statutory appeal a non-efficacious remedy. The petitioner had sufficient opportunity of contesting the adjudication proceeding on merits but it chose not to do so. The respondent granted two adjournments to the petitioner - By the notice dated 7 February, 2013 all the noticees including the petitioner were informed that no further adjournments would be allowed and if one failed to appear, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of investigation, a show-cause notice dated 13 September, 2012 was issued to the petitioner and six other persons involved in the import of the vehicle, under Sec. 124 of the Customs Act, 1962 read with the proviso to Sec. 28 of the Act. (4) The allegation in the show-cause notice was that the vehicle was converted from left hand drive to right hand drive and had changed hands before being imported into India and as such was not eligible for concessional duty. Further, the cost of conversion from left hand drive to right hand drive had not been included in the assessable value of the vehicle and as such duty was short paid at the time of import. The show-cause notice proposed to recover differential customs duty amounting to ₹ 25,91,844/- with interest and to confiscate the vehicle under Clauses (d) and (m) of Sec. 111 of the Customs Act. Penalty equal to the differential duty was proposed to be imposed under Sec. 114A of the Act as also under Sec. 114AA of the Act for false declaration and use of false documents. (5) The show-cause notice was issued by the Addl. Director, Directorate of Revenue Intelligence (in short DRI) but was answerable to the Joint/Addl. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duly signed and made ready for the purpose of filing on 8 May, 2013. However, such filing was held up pending arrangement of deposit of the settlement application fee of ₹ 1,000/- at Calcutta. The petitioner s advocate assured him that in view of the letters dated 1 February, 2013 and 8 March, 2013 requesting the respondent not to proceed with the adjudication, the respondent would grant an opportunity of hearing before adjudication. (13) Learned Counsel in particular highlighted two paragraphs of the order impugned being paragraphs 2 and 4 which read as follows:- 2.Shri Suresh Halde replied to the show cause notice vide letter dt. 23-10-12 Shri Manoj Baid replied to the show cause notices for himself and his firm vide letters dated 26- 10-12. Shri Kailash Palani replied vide letter dt. 21-12-12 02-02-13. Shri Balu patil replied through his advocate vide letter dt. 24-12-12. Shri Charanjit Singh replied through his advocate vide letter dt. 20-02-12. As the other noticees did not reply and a considerable time was elapsed, personal hearing in the matter was granted on 26-12-12, 05-02-13 and 12-03-13. Shri Manoj Baid appeared for himself and his firm on 26-12-12. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 2013; (iii) the respondent recorded that the petitioner s advocate attended the hearing on 5 February, 2013 when in fact the petitioner s advocate by his letter dated 1 February, 2013 had prayed for adjournment and had not attended any hearing on 5 February, 2013; (iv) there is no reference to the petitioner s letter dated 8 March, 2013 requesting that the case be not adjudicated upon and stating that the settlement application would be submitted within two weeks; (v) the respondent recorded that Though the importer did not reply to the show cause notice, his advocate attended the hearing on 5 February, 2013 and now they have paid demanded differential duty and an amount of interest as calculated by them. Thus, they agree to the allegations and the charges are proved. Learned Counsel submitted that the impugned order is ex facie unreasonable and perverse. (15) It was next submitted that the respondent wrongly proceeded on the basis that the petitioner had agreed to the allegations made in the show cause notice. The petitioner never agreed to the allegations in any written communication or otherwise. In the absence of such agreement, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t adjudicated the matter long three months after the last date of hearing. (19) Learned Counsel then submitted that even the proviso to Sec. 122A(2) of the Customs Act did not stand in the way of the respondent granting another hearing to the petitioner. The said proviso permits three adjournments. Hence, a fourth date of hearing could be fixed. (20) Mr. Khaitan submitted that the respondent drew upon his imagination, imported facts and circumstances not apparent from the record, ignored relevant materials forming part of the record and based his conclusions on conjectures and surmises. When a Court of fact acts on material which is partly relevant and partly irrelevant it is impossible to say to what extent the mind of the Court was affected by the irrelevant material considered by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material. In this connection learned Counsel relied on the Supreme Court decisions in the cases of CIT-vs.-Daulat Ram Rawatmull, (1973) 87 ITR 349 and CIT-vs.-S. P. Jain, (1973) 87 ITR 370. (21) Learned Counsel then submitted that at the time of filing of the instant writ petition and until the amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 8 March, 2013 the petitioner sought for further adjournment and undertook to submit a copy of the settlement application within next two weeks, no such application was submitted before the Adjudicating Authority. As nothing was heard from the petitioner even after lapse of more than two weeks from the last communication made by the petitioner, after verification from the office of the Settlement Commission that no settlement application had been filed by the petitioner, the Adjudicating Authority passed the order dated 12 June, 2013. The petitioner never appeared before the DRI during investigation and never disputed the allegations made against him either by giving a reply to the show cause notice issued by the DRI or by filing any submission before the respondent Adjudicating Authority in spite of getting ample opportunity of doing so. Moreover, in spite of getting sufficient opportunity to approach the Settlement Commission, the petitioner did not do so for a long period of nine months from the date of issuance of the show cause notice on 13 September, 2012 till the order dated 12 June, 2013 was passed. The respondent has scrupulously observed the principles of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner tried his luck before the Adjudicating Authority and when the proceeding did not go his way, he wants to try his luck before the Settlement Commission by obtaining permission from this Court. This should not be permitted. In this connection, learned Counsel relied on a Division Bench judgment of this Court in MAT 425 of 2015 (Satish Kumar Sharma-vs.-Union of India Ors.) (28) Learned Counsel finally submitted that the writ application is not maintainable in view of an efficacious alternative remedy being available to the petitioner. In this connection learned Counsel relied on the following decisions:- (i) Commissioner of Income Tax Ors.-vs.-Chhabil Dass Agarwal, (2014) 1 SCC 603. (ii) Union of India Anr.-vs.-Guwahati Carbon Limited, (2012) 11 SCC 651. (iii) Titaghur Paper Mills Co. Ltd. Anr.-vs.-State of Orissa Ors. (1983) 2 SCC 433. (iv) Nepa Agency Co. Pvt. Ltd. Ors.-vs.-Union of India Ors. (2015) 321 ELT 620. Petitioner in reply:- (29) As regards the point of availability of alternative remedy, learned Counsel submitted that the appeal before the Commissioner of Customs (Appeals) is not an adequate alternative or efficac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er promised to submit a copy of the settlement application within the next two weeks. However, the petitioner did not do so. The impugned order was passed on 11 June, 2013. (32) The main grievance of the petitioner appears to be that he has lost the opportunity of approaching the Settlement Commission. This is because after the amendment of the definition of case in Sec. 127(1) of the Customs Act, 1962, a case would not include a proceeding referred back to the Adjudicating Authority for a fresh adjudication by any Court, Appellate Tribunal or any other authority and hence, Sec. 127B of the Customs Act, which provides for application to Settlement Commission, would not be available to the petitioner. This amendment to the definition of case came into effect on 14 May, 2015 during the pendency of the writ petition. (33) The petitioner contended that the respondents should have given one more adjournment as requested by the letter dated 8 March, 2013 and this was permissible under the proviso to Sec. 122A(2) of the Customs Act which permits three adjournments. The petitioner s further grievance is that since the impugned order was passed by the respondent three months after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), wherein it was observed, inter alia, that the High Court always has the jurisdiction to intervene if it appears that the Appellate Tribunal has misunderstood the statutory language because the proper construction of the statutory language is a matter of law, or it has arrived at a finding based on no evidence or where the finding is inconsistent with the evidence or contradictory to it or it has acted on material partly relevant and partly irrelevant or where the Tribunal draws upon its own imagination, imports facts and circumstances not apparent from the record, or bases its conclusions on mere conjectures or surmises or where no person judicially acting and properly instructed as to the relevant law could have come to the determination reached. The case of Priyanka Overseas Pvt. Ltd.-vs.-Union of India (supra), was relied upon by Mr. Khaitan in support of his submission that an authority cannot take advantage of its own wrongful and illegal act. In such a case in molding the relief the Court has always applied principles of equity in order to do complete justice between the parties. (36) Mr. Ganguli, learned Counsel for the respondent on the other hand relied on two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon ble Apex Court observed, inter alia, that where a revenue statute provides a machinery for challenging an order of assessment, such order should be challenged in the manner provided and before the forum stipulated and in such cases ordinarily the writ court should not entertain an application. (39) I am of the considered view that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of. In the case of Whirlpool Corporation-vs.-Registrar of Trade Marks, (1998) 8 SCC 1, the Apex Court observed that under Art. 226 of the Constitution of India, the High Court having regard to the facts of a case, has a discretion to entertain or not to entertain a writ petition. The High Court has imposed upon itself certain restrictions one of which is that if an efficacious alternative remedy is available, the High Court would not normally exercise its writ jurisdiction. (40) As I have held in the case of Nepa Agency Co. Pvt. Ltd.-vs.-Union of India (supra), the customs law is a complete code by itself. The Customs Act and the Rules and bye-laws framed thereunder constitute a comprehensiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an authority but what falls for scrutiny is the decision making process. There was nothing illegal or unfair or unjust or arbitrary about the procedure adopted by the respondent. The Writ Court is generally not concerned with the merits of the decision under challenge. If the petitioner was serious about approaching the Settlement Commission, he ought to have been more diligent and he had sufficient time for filing a settlement application before the Settlement Commission. It appears that he took a chance of getting a favourable verdict before the respondent and now that the order has gone against him, he prays for an opportunity to approach the Settlement Commission. I am in full agreement with the view of the learned Judge in the case of Exotica Global Pvt. Ltd. (supra) extracted above, which was upheld by our Hon ble Division Bench. (43) In view of the aforesaid, this application fails and is dismissed. However, if the petitioner prefers an appeal from the impugned order within four weeks from date, the petitioner shall be entitled to the benefit of Sec. 14 of the Limitation Act and the Appellate Authority shall decide the appeal on merits without going into the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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