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TMI Blog2020 (10) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... to 6. We have also heard Ms. Faranaaz Karbhari, learned counsel for respondent No.7. 3. Writ Petition (L) No.3503 of 2020 was argued by learned counsel for the parties as the lead case. Therefore, all facts and pleadings mentioned would be in reference to the said writ petition. 4. By filing this petition under Article 226 of the Constitution of India, petitioner has sought for the following reliefs:- 1) To set aside and quash communications dated 02.09.2020 of respondent Nos.5 and 6; 2) To direct the respondents, more particularly respondent Nos.4 and 7, to clear the goods imported by the petitioner vide bills of entry bearing Nos.5720040, 5720192, 572069, 5722458, 5722730, 5719772, 5722243 and 5722456, all dated 18.11.2019. 4.1. In the other writ petition i.e., Writ Petition No.3502 of 2020, in addition to relief No.1, petitioner seeks direction to the respondents, more particularly respondent Nos.4 and 7, to clear the goods imported by the petitioner vide bills of entry bearing Nos.5520732, 5520871 and 5520536, all dated 01.11.2019. Case of the Petitioner 5. Petitioner is a proprietorship firm having its registered office at Jaipur, in the State of Rajasthan. It is eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sativum) including yellow peas, green peas, dun peas and kaspa peas having Exim code 0713 1000 was restricted and subject to minimum import price of Rs. 200.00 CIF per kilogram and annual quota of 1.5 lakh MT; besides import was allowed only through Kolkata sea port. 11. It appears that Union of India filed number of transfer petitions in the Supreme Court for hearing of different writ petitions which were filed in different High Courts challenging the notification dated 29.03.2019 and trade notice dated 16.04.2019. Thus, transfer petitions were registered as Transfer Petition (Civil) Nos.496-509 of 2020 (Union of India Vs. Agricas LLP). By judgment and order dated 26.08.2020, Supreme Court upheld the said notification and trade notice and rejected the challenge made by the importers. It was held as under: "48. Accordingly, we uphold the impugned notifications and the trade notices and reject the challenge made by the importers. The imports, if any, made relying on interim order(s) would be held to be contrary to the notifications and the trade notices issued under the FTDR Act and would be so dealt with under the provisions of the Customs Act 1962. The Writ Petitions subject m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. The above letter was received by respondent No.7 in the midst of unloading of the goods of the petitioner. Thereafter petitioner received a letter dated 09.09.2020 from respondent No.7 stating that the cargo stored in its premises would not be released in view of directions received from the customs authorities. 15. Aggrieved, the present writ petition has been filed. Stand of the Respondents 16. Respondent Nos.4 to 6 have filed a common affidavit. In paragraph 16 of the affidavit it is stated that all the bills of entry filed by the importer were assessed on 29.08.2020. Redemption fine and personal penalty were levied proportionately as per quantity declared in the respective bills of entry. In paragraph 17, it is admitted that the importer i.e., the petitioner has paid duty, proportionate redemption fine and personal penalty in respect of all bills of entry and have obtained out of charge. 16.1. Thereafter it is stated that a letter dated 01.09.2020 was received from the Directorate General of Foreign Trade, New Delhi addressed to the Central Board of Indirect Taxes and Customs wherein it was mentioned that as per present policy, peas is a restricted item. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs to apply to the Commissioner (Appeals) for setting aside of the order-in-original are totally frivolous and are no grounds at all in the eye of law. One by one he has taken us to the various grounds given in the order dated 01.10.2020 for review of the order-in-original. 17.2. He has also placed before the Court a copy of the order-in-original passed by the Joint Director General of Foreign Trade, Jaipur dated 16.12.2019 suspending the import export code of the petitioner prospectively. On a query by the Court he submits that against this order petitioner has preferred appeal and this fact was also brought to the notice of the Supreme Court while hearing the transfer petitions. Supreme Court indicated in paragraph 47 of the judgment that the statutory appeals preferred by the importers against suspension or termination of import export code will be decided in accordance with law. That aspect of the matter was not examined and therefore, no comment was made thereon by the Supreme Court. 17.3. He finally submits that there can be no justifiable reason for not releasing the goods of the petitioner despite petitioner complying with all the terms and conditions of the order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Therefore, there cannot be any justifiable reason not to release the imported goods of the petitioner. Because of storage of the goods in customs warehouse, petitioner is having to incur more than Rs. 60 lakhs per day. Viewed in that context action of the respondents is extremely high-handed and oppressive, besides being contemptuous. He, therefore, submits that writ petition may be allowed with costs. Discussions 20. Submissions made by learned counsel for the parties have been duly considered. Also perused the materials on record. 21. We have already seen that challenge to the notification dated 29.03.2019 and trade notice dated 16.04.2019 whereby the item peas (pisum sativum) including yellow peas, green peas, dun peas and kaspa peas having Exim code 0713 1000 was placed in the restricted category with further restrictive conditions for import were upheld and challenge thereto made by the importers was rejected by the Supreme Court. While dismissing the writ petitions, Supreme Court observed that the imports made by relying on interim orders would be contrary to the notification and the trade notice. Such imports would have to be dealt with under the provisions of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act pointing out various deficiencies in the order-in-original whereafter Additional Commissioner of Customs was directed to apply to the Commissioner (Appeals) to set aside the order-in-original. Copy of the order dated 01.10.2020 has been annexed to the affidavit in reply. 26. When this Court had taken cognizance of the grievance made by the petitioner and was in seisin of the matter fixing 06.10.2020 for consideration, it was highly improper on the part of Commissioner of Customs (Import-II) to have passed the order dated 01.10.2020 without any intimation to or taking leave of the Court. It needs no reiteration that when the court, that too the High Court, is in seisin of a matter, an administrative or executive authority cannot start a parallel proceeding on the very same subject matter at its own ipse dixit and record a finding. It would amount to interfering with the dispensation of justice by the courts. In the instant case, when the Court was set to examine the grievance of the petitioner regarding non-release of the goods despite the order-in-original, what was sought to be done was to present the Court with an order passed in the midst of such examination keep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and examine the record of such proceeding for the purpose of satisfying himself as to the legality or propriety of any such decision or order; (iv) if the higher authority is satisfied that such decision or order is not legal or proper, he may by order direct such authority (subordinate adjudicating authority) or any officer of customs subordinate to him to apply to the Commissioner (Appeals) for determination of such points arising out of the decision or order as may be specified by the Principal Commissioner of Customs or Commissioner of Customs in his order. 27.2. From an examination of the aforesaid provision and the salient features as culled out above, it is quite evident that the jurisdiction conferred on the Principal Commissioner of Customs or Commissioner of Customs under sub-section (2) of section 129 D is revisional and not review; it is a suo-motu revisional jurisdiction which is exercised by either of the above two officers for the purpose of satisfying himself as to the legality or propriety of any decision or order of an adjudicating authority subordinate to him. 27.3. The time limit for passing an order under sub-section (2) of section 129D is three months wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r authority to make them act according to law, according to the procedure established by law and accordingly to well-defined principles of justice. Revisional jurisdiction as ordinarily understood is always included in appellate jurisdiction but not vice versa. 28.1. Following therefrom Supreme Court observed that conceptually, revisional jurisdiction which is a creature of statute is a part of appellate jurisdiction but it is not vice versa. Ordinarily, revisional jurisdiction cannot be equated with that of a full-fledged appeal. When the aid of revisional jurisdiction is invoked, the revisional authority can interfere within the permissible parameters provided in the statute. In so far the word legality is concerned, it was held as under:- "29.1. The ordinary meaning of the word 'legality' is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal." Referring to the term propriety, it was held as under:- "29.2. The term 'propriety' means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han referring the matter to the designated government agency; 6. enquiry not conducted for ascertaining market price and margin of profit for imposition of redemption fine and penalty. 30. On the above basis, the order-in-original was found to be not legal and proper, and therefore, the Additional Commissioner of Customs was directed to apply to the Commissioner (Appeals) to set aside the said order and pass suitable order as may be deemed fit. 31. As we have discussed above, the suo-motu revisional power under sub-section (2) of section 129 D is within a very narrow compass; to ensure that the subordinate authorities are kept within the bounds of their authority to make them act according to law; according to the procedure established by law; and according to well defined principles of justice; thus conforming to the requirement of legality or propriety, the connotations of which we have noted. We have also seen that consequent upon exercise of power under sub-section (2) of section 129 D, the application filed before the Commissioner (Appeals) would be treated as if it is an appeal against the decision or order of the adjudicating authority and all provisions regarding appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to section 124 and he has given reasons for the same i.e., long pendency and perishable nature of the consignments. 33. The next ground given is non-addressal of the issue of suspension of import export code of the petitioner. In the course of hearing, learned counsel for the petitioner had placed before the Court a copy of order-in-original dated 16.12.2019 issued by the Joint Director General of Foreign Trade, Jaipur whereby fiscal penalty of Rs. 25,000.00 was imposed on the petitioner under sections 11 and 13 of the Foreign Trade (Development and Regulation) Act, 1992; besides, he also ordered for suspension of the import export code of the petitioner barring the petitioner from conducting any further import and export as per section 8(1) of the Foreign Trade (Development and Regulation) Act, 1992. 33.1. On this aspect Supreme Court in Union of India Vs. Agricas LLP (supra) noted that it had not examined the matter as statutory appeals have been filed against orders suspending or terminating import export code. Thus, Supreme Court declined to make any comment and observed that the statutory appeals preferred by the importers will be decided in accordance with law. 33.2. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The second proviso clarifies that such fine shall not exceed the market price of the goods confiscated and in the case of imported goods, minus the duty chargeable thereon. As per sub-section (2) where any fine in lieu of confiscation of goods is imposed, the owner of such goods or the person concerned shall in addition be liable to any duty and charges payable in respect of such goods. 34.3. The power under sub-section (1) of section 125 regarding giving option to the owner or person concerned to pay fine in lieu of confiscation is discretionary in respect of goods the importation or exportation whereof is prohibited but in respect of other goods it is mandatory. Therefore, such a power is available to the adjudicating authority and he has exercised that power. That apart, when fine is imposed in lieu of confiscation, sub-section (2) makes it abundantly clear that the owner or the person concerned would have to pay in addition to the fine, the customs duty and other charges. Non-mentioning of the duty payable in the order-in-original is therefore immaterial, as payment of the same is statutorily mandated under sub-section (2) of section 125. 34.4. Regarding the quantum of red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appears to be questionable. As already discussed, adjudicating authority had the power to give option to the owner or person concerned to pay fine in lieu of confiscation which power he exercised and the quantum of fine was determined after considering various aspects including the margin of profit suggested by the assessing officer. 35. The final ground given by the Commissioner is that the adjudicating authority did not discuss why he chose to rely upon the certificate of the accredited laboratory rather than referring the matter to the designated government agency. The ground itself indicates that the laboratory from which the related report was obtained and which was considered is a laboratory which is accredited to the customs department. Accredited means giving official authorization or recognition. Therefore, no fault can be found in the adjudicating authority placing reliance on such report. Besides, no technical or any other fault in such report has been pointed out by the Commissioner. 36. We have examined the grounds given in the order dated 01.10.2020 not as an appellate authority over the Commissioner but only to satisfy ourselves as to whether on such grounds a bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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