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TMI Blog2021 (8) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... t would have been time barred. Though a prayer for condonation of delay could have been made before the Tribunal. In any event, if it appears that the respondent having lost out on time to avail the statutory remedy, seeks to bypass the same and file a writ petition, the Courts would not entertain such a petition and will come to the conclusion that the reason for bypassing the statutory appellate remedy is because the appeal cannot be maintained at that point of time. Decided in favor of revenue - Appeal allowed. - W.A.No.1763 of 2021 And C.M.P.No.11024 of 2021 - - - Dated:- 17-8-2021 - Honourable Mr.Justice T.S.Sivagnanam And Honourable Mr.Justice Sathi Kumar Sukumara Kurup For the Appellants : Mr.V.Sundareswaran, Senior Standing Counsel For the Respondent : Mr.S.Murugappan JUDGMENT T.S.SIVAGNANAM, J. The Customs Department, which were impleaded as respondents in W.P.No.5790 of 2017, filed by the respondent herein, are the appellants before us. 2.The respondent filed the writ petition challenging the Order-in- Appeal passed by the first appellant dated 29.09.2016, and for a direction to the second appellant to adjudicate the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the 1962 Act; 5.2.M/s.SCL, the respondent-writ petitioner and Damodharan were directed to show cause as to why the seized gold bars/cut gold bars/crude gold bars and gold ornaments totally weighing 2503.84 grams and valued at ₹ 66,28,302/- should not be confiscated under Sections 111(d) and 111(l) of the 1962 Act; why the seized currency of ₹ 59,900/-, being the sale proceeds of the smuggled gold, should not be confiscated under Section 121 of the 1962 Act; and why penalty should not be imposed on them under Section 112 of the 1962 Act; 5.3.M/s.SCL, the respondent-writ petitioner, one Haji Ali, the fifth noticee and C.Maheswaran were called upon to show cause as to why the seized gold totally weighing 199.980 grams and valued at ₹ 5,46,545/- should not be confiscated under Sections 111(d) and 111(l) of the 1962 Act; and why penalty should not be imposed on them under Section 112 of the 1962 Act; 5.4.M/s.SCL, the respondent-writ petitioner and Abdul Azeez, the fourth noticee were directed to show cause as to why the seized gold crud bracelet totally weighing 199.810 grams and valued at ₹ 5,46,081/- should not be confiscated under Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure of gold weighing 5242.730 grams valued at ₹ 1,39,79,482.80, which were confiscated; imposed penalty of ₹ 70,00,000/- on M/s.SCL; penalty of ₹ 70,00,000/- on the respondent-writ petitioner; penalty of ₹ 59,900/- on Damodharan; penalty of ₹ 1,25,000/- on C.Maheswaran; penalty of ₹ 2,50,000/- on Abdul Azeez; penalty of ₹ 2,50,000/- on Haji Ali; and penalty of ₹ 15,00,000/- on each of the other four noticees. 9.M/s.SCL and the other noticees, viz., Damodharan, Abdul Azeez, Haji Ali, C.Maheswaran, Hemanthkumar, J.Thiyagarajan, G.Venkatesh and Aravindkumar did not prefer any appeal against the said order dated 29.04.2016. The sole appellant was the respondent, who preferred appeal before the first appellant. The said appeal was dismissed by order dated 29.09.2016. Challenging the said order, the respondent filed the writ petition, which has been disposed of with directions as stated above. 10.The first hurdle, the respondent needs to cross is with regard to the maintainability of the writ petition. As against the order passed by the first appellant dated 29.09.2016, appeal lies to the Customs, Excise and Service Tax Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extraordinary jurisdiction of this Court. 14.The appellant-Revenue resisted the prayer by filing a counter affidavit wherein, a preliminary objection was raised with regard to the maintainability of the writ petition, as an appellate remedy is available to the Tribunal. Further, it is submitted that the respondent had appeared before the first appellant, represented by his counsel and after conducting a full-fledged hearing, a detailed speaking order has been passed by the first appellant and there are several complicated factual issues involved, which cannot be agitated in a writ petition. Further, it was contended that the statements have been given voluntarily and those three persons who have given statements, who are also the noticees against whom order of confiscation/penalty has been passed, have never retracted the said statement at any earlier point of time. 15.Further, it was submitted that the request for cross examination was specifically considered by the Adjudicating Authority as well as the First Appellate Authority and detailed reasons have been given as to why cross examination need not be provided and it was a ploy adopted by the respondent to delay the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to cross examine the three persons. This request was separately considered by the second appellant and by communication received by the counsel for the respondent on 07.10.2015, it was clearly mentioned as to why the request for cross examination cannot be considered. This communication is a standalone communication, qua the request for cross examination. Therefore, it would be incorrect on the part of the respondent to state that no separate communication was sent rejecting the request for cross examination. Admittedly, the respondent did not question the said communication, but proceeded to give another representation on 21.12.2015. Obviously, the second appellant, having already passed an order, rejecting the request for cross examination, was not expected to act on the representation dated 21.12.2015. 19.The respondent had challenged the order passed by the first appellant, who confirmed the adjudication order passed by the second appellant not on merits, but only on the ground that cross examination was not permitted. The contention of the respondent that the appeal before the Tribunal is illusory and not efficacious is an argument, which has to be rejected. The Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 108 of the Act, which bind those persons and more importantly, none of the three persons have retracted the statements and allowed the statements to remain as such, the matter had went through the adjudication process and penalty/confiscation order has been passed on 29.04.2016, which has attained finality, insofar as those three persons are concerned. Therefore, to truncate the case of the respondent alone from that of the nine other persons, who have been charged along with the respondent, which includes M/s.SCL, the company in which the respondent is the Managing Director. That apart, the respondent also in his voluntary statement has admitted the offence. Even assuming the respondent now seeks to set up a plea that the statements are not voluntary and there was some retraction, mere retraction will not render the voluntary confession statement as invalid. It appears that the respondent has made an attempt to retract the statements given on 15.12.2014, 16.12.2014 and 26.12.2014 admitting the offence after more than two months, which obviously would not stand the test for holding the statements to be not voluntary. Further, none of the staff of M/s.SCL of which, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out earlier, the remedy before the Tribunal is not only effective but efficacious. The Tribunal will be able to re-appreciate the facts and take a decision both on facts as well as on law. Therefore, there is absolutely no justification on the part of the respondent to bypass the appeal remedy available to him. 26.So far as the finding rendered by the appellants, denying the request of cross examination is concerned, we are of the opinion that the same is perfectly in order and the respondent cannot be heard to say that there has been violation of principles of natural justice. Thus, the decision of the Hon'ble Supreme Court in Assistant Collector of Central Excise vs. Dunlop India Ltd., [(1985) 1 SCC 260 (SC)] can be applied to the facts and circumstances of the case and the writ petition was liable to be dismissed on the ground of availability of alternate remedy. 27.The decision in Andaman Timber Industries (supra), relied on by the respondent, would not apply to the facts and circumstances of the case on one more ground that the said decision arose out of an appeal challenging the order of the Tribunal and the Court was called upon to decide a sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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