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TMI Blog2023 (1) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... ernate remedy of appeal. This answers NJP facet of the matter. If the writ petitioner chooses to avail alternate remedy by filing appeal to the Commissioner of Customs (appeals) under Section 128 of said Act, the Appellate Authority shall consider the appeal (subject of course to pre-deposit and limitation) on its own merits and in accordance with law uninfluenced / untrammeled by the observations made in this order as the observations made in this order is for the limited purpose of disposal of the captioned writ petition. The sequitur is captioned Writ Petition fails and the same is dismissed. - W.P.No.34206 of 2022 And W.M.P.No.33654 of 2022 in W.P.No.34206 of 2022 - - - Dated:- 2-1-2023 - Hon'ble Mr. Justice M.Sundar For the Petitioner : Mr.A.Ganesh ORDER A Customs Officer in Anna International Terminal, Chennai International Airport is the writ petitioner in the captioned writ petition. 2. Captioned matter was listed in the Admission Board and Mr.A.Ganesh, learned counsel on record for writ petitioner was before this writ Court. 3. Short facts are that the 'Directorate of Revenue Intelligence' Chennai ['DRI' for the sake of bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too, after 2 years from booking of the case; that it has been recorded in the impugned order that despite several personal hearings extended to the writ petitioner and other co-noticees, they were adopting dilatory tactics by either seeking time on one pretext or the other or asking for cross-examination of co-noticees; that it is under such circumstances, the impugned order came to be made; that the packing materials namely, adhesive tapes and polythene covers were seized vide Mahazar dated 19.02.2020; that 400 kilograms of gold valued at Rs.160 Crores has been successfully smuggled in the past and Sections 111(d), 111(l) and 111(m) have been resorted to; 4. In the above backdrop, the captioned writ petition has been filed assailing the impugned order. To be noted, as already alluded to supra, the writ petitioner is a Customs Officer. 5. Learned counsel in his campaign against the impugned order, notwithstanding very many averments in the writ affidavit focused his submissions on the following grounds: (a) Under Section 124(c) of said Act, reasonable opportunity of being heard has to be given but no personal hearing was given to the writ petitioner before making the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite several personal hearings extended to them, I observe that they were all adopting dilatory tactics of either seeking time on one pretext or the other or were asking for cross examination of the co-noticees. In this regard it is pertinent to point out that the Hon'ble Apex Court in Kanungo Company Vs. Collector of Customs and Ors. on 7 February 1972 in para 12 of the said judgment had held that : In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities ..................................... ' To be noted, names of co-noticees have been masked considering the nature of the matter while producing the extract. This is more so, as the writ petitioner who is a Customs Officer is only before this Court. To be noted, basic principle is, all official acts are presumed to have been done officiously unless the contrary is established. In any event, there is no disputation or contestation about search and seizure. Therefore, the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same, Department preferred appeal before Hon'ble Supreme Court. Hon'ble Supreme Court allowed the appeal with costs. Relevant paragraph in aforementioned Dunlop case law is paragraph No.3 and most relevant portion of the same reads as follows: ' 3. ....... Article 226 is not meant to shortcircuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en availed and a Writ Petition under Article 226 of the Constitution of India should not be entertained. Relevant paragraph in K.C.Mathew case is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was CA 5121/2021 7 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.' (vi) Relevant paragraphs which give facts in Greatship case are paragraphs 2 to 5 which reads as follows: ' 2. That the respondent - original writ petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on behalf of the respondent, referred to hereinabove, are concerned, the question is not about the maintainability of the writ petition under Article 226 of the Constitution, but the question is about the entertainability of the writ petition against the order of assessment by-passing the statutory remedy of appeal. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No valid reasons have been shown by the assessee to by-pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions. ' (vii) The above line of authorities / case laws make it clear that Hon'ble Supreme Court has repeatedly held that when it comes to fiscal law and more particularly cases of this nature where the allegation is confiscation of huge quantity of gold having been smuggled, the rigour of the rule of alternate remedy is increased. The bar is increased. As regards alternate remedy rule, it was also pointed out that it calls for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely unacceptable as it is contrary to the plain language of the Statute. Proviso has to be construed strictly and the proviso which is in the nature of a bar cannot be interpreted to say that it is statutory requirement in terms of number of hearings that have to be held. To be noted, the language in which the proviso is couched clearly mentions about 'adjournments'. (x) This takes this writ Court to the case laws that were pressed into service by learned counsel in his campaign against impugned order. Before embarking upon the exercise of discussion on case laws, this writ Court reminds itself of the declaration of law made by a Hon'ble Constitution Bench in celebrated Padma Sundara Rao case [Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3 SCC 533] . This is declaration of law where Hon'ble Supreme Court laid down the manner in which reliance on case law has to be made. Most relevant paragraph qua declaration of law made by Hon'ble Supreme Court in celebrated Padma Sundara Rao principle is paragraph No.9 and the same reads as follows: ' 9. Courts should not place reliance on decisions without discussing as to how the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ELT) report placed before this writ Court brings to light that the facts are not clear. Absent facts, this writ Court does not want to venture into the views of Hon'ble Division Bench of another High Court which has persuasive value. This takes this Court to Veetrag Enterprises case law which is a case where the petitioner has sought to defer the date of personal hearing and it is a case of import of coated gummed paper. More importantly, that is also a case where this Hon'ble Court had permitted provisional release of the consignment. This is articulated in paragraph No.3 of Veetrag Enterprises case law. Provisional release is under Section 110A of said Act. This means that Veetrag Enterprises case law is a case where the importability of the consignment was not in dispute. To this extent, Veetrag Enterprises case law is clearly distinguishable on facts. As Veetrag Enterprises case law is clearly distinguishable on facts, it does not come to the aid of learned counsel for writ petitioner in his campaign against the impugned order in the case on hand though Veetrag Enterprises case law had referred to Ayaaubkhan case and Vulcan Industrial ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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