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TMI Blog2022 (9) TMI 1595X X X X Extracts X X X X X X X X Extracts X X X X ..... r not the office concerned had seized the article under the reasonable belief that the goods were smuggled goods, is not a question on which the Court can sit on appeal. The circumstances under which the officer concerned entertains reasonable belief, have to be judged from his experienced eye who is well equipped to interpret the suspicious circumstances and to form a reasonable belief.' Pre-condition of having reasons to belief - HELD THAT:- The competence of the Officer in question has not been questioned and the principal issue is that before the search and the impugned decision is taken, the concerned Officer did not have materials to construe reasons to believe regarding commission of an offence. Such defence is apparently fallacious inasmuch, as this Court is of the prima facie view that materials were there before the competent authority which were considered before coming to the conclusion of reasons to believe. Such satisfaction is obviously a subjective one and cannot be interfered with in a routine manner. In a given case, however, if such powers were mechanically exercised without taking into consideration the relevant facts and circumstances, the action would be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient to state the facts of the case in brief. 4. The petitioner no. 1 is the proprietor of M/s. SR Enterprise whereas the petitioner no. 2 is the Power of Attorney holder. The petitioners deal with the business of areca nuts for which license has been issued under Sections 25/57/95 of the Assam Panchayat Act, 1994. The petitioners also claim to have procured GST registration certificate. 5. It is the case of the petitioners that dried areca nuts were purchased from different purchasers. In May, 2020-6489 Kgs., in June, 2020-32560 kgs and in July, 2020, there was both purchase and sale and the remaining stock was 48336 kgs. Similarly, after the transaction in the month of August, 2020, the petitioners had total stock of dried areca nuts of 50757 kgs. out of which a quantity of 40300 kgs. were sold. The petitioners have projected that the Customs Authority has made the allegations that the aforesaid goods (areca nuts) were illegally procured from Myanmar. 6. It is the case of the petitioners that documents relating to every purchase and sale were available and therefore, the allegation of illegal procurement was baseless. It is contended that the Seizure was not done from any Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l release of the goods has not been adjudicated upon and in this regard, a reminder dated 09.09.2020 was also made. 9. In support of his submissions, Shri Garodia, the learned counsel for the petitioner places reliance upon a number of decisions. However, this Court deems if fit to consider only the decisions of the Hon ble Supreme Court and the relevant decisions of different High Courts. The following are the said decisions: (i) Calcutta Discount Company Ltd. vs. Income Tax Officer, (1961) 2 SCR 241, (ii) A.V. Venkateswaran vs. Ramchand Sobhraj Wadhwani, (1962) 1 SCR 753 : AIR 1961 SC 1506, (iii) M/s. Baburam Prakash vs. Antarim Zila Parishad, (1969) 1 SCR 518, (iv) Whirlpool Corporation Vs. Registrar of Trade Marks, (1998) 8 SCC 1, (v) State of AP vs. M/s. Linde India Ltd., (2020)16 SCC 335, (vi) AS Krishnan Ors. Vs. State of Kerela, (2004) 11 SCC 576, (vii) Sheo Nath Singh Vs. Assistant Commissioner of Income Tax, (1972) 3 SCC 234, (viii) Union of India Vs. Padam Narain Agarwal, (2008) 13 SCC 305, (ix) M/s. Ranadey Micronutrients Vs. Collector of Central Excise, (1996) 10 SCC 387, (x) Commissioner of Custom Vs. Indian Oil, (2004) 2 SCR 511. 10. In the case of Calcutta Discount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argument of the learned Solicitor-General. We must, however, point out that the Rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a Rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court ......... 10. The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal Rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be depende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice and demand contrary to existing circulars of the Board are ab initio bad. (4) It is not open to the Revenue to advance an argument or file an appeal contrary to the circulars. 16. Per contra, Shri Keyal, the learned Standing Counsel, Customs Department, apart from opposing the writ petition has raised a preliminary objection on the maintainability of the writ petition. By referring to the affidavit-in-opposition filed by the respondents on 10.08.2021, the learned Standing Counsel has contended that the writ petition itself is a pre-matured one wherein a show cause notice dated 20.02.2021 has been put to challenge. It is submitted that the authorities have not even come to a conclusion regarding the complicity of the petitioner with the offence involved which can be done only after conclusion of a procedure established by law. However, in the instant case, without even showing cause to the impugned notice, the writ petitioner has tried to pre-empt the process by putting a challenge to the show cause notice itself. 17. On merits, the learned Standing Counsel submits that the materials on records are sufficient for the authorities to come to a reasonable belief and based upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Pradesh Vs. S. Pitchi Reddy, (2022) 2 SCC 569. 21. In the case of Dunlop India Ltd. (supra), the Hon ble Supreme Court has held as follow: 3. In Titaghur Paper Mills Co. Ltd. v. State of Orissa A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short-circuit 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 Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Section 14 of the SARFAESI Act, by way of appeal under Section 17, can be said to be both expeditious and effective. On maintainability of or entertainability of a writ petition under Article 226 of the Constitution of India, in a case where the effective remedy is available to the aggrieved person, it is observed and held in the said decision in paras 43 to 46 as under : 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 involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order. 24. In the case of S. Pitchi Reddy (supra), the Hon ble Supreme Court has held as under: Firstly, the High Court ought not to have directly entertained the writ petitions challenging the fresh assessment orders. The respective dealers assessees ought to have availed the alternative remedy of appeals before the first appellate authority which were availed earlier when the earlier assessment orders were passed. 25. Shri Garodia, learned counsel for the petitioner in his reply has submitted that the basis of the investigation emanates from a casual informer . He therefore, criticises as to how a reasonable belief can be arrived at from such information. 26. The learned counsel further refers to a communication dated 08.02.2017 issued by the Ministry of Finance in which it has been laid down that whenever goods are seized, in addition to the Panchnama, the proper office must also pass appropriate orders like seizure memo/order clearly mentioning the reasons to belief that the goods are liable for confiscation. He further submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainability of the writ petition itself on the ground of availability of alternative remedy. Though availability of an alternative remedy may be a bar against invocation of the writ jurisdiction, such bar cannot be construed to be an absolute bar and as held by the Hon'ble Supreme Court, including in the case of M/s. Whirlpool Corporation (supra), under certain circumstances, like jurisdictional error, lack of bona fide and apparent violation of the principles of natural justice, such writ petition can be entertained. 32. In the instant case, however, none of the exceptions carved out in the case of M/s. Whirlpool Corporation (supra) appears to be present in favour of the petitioner. The competence of the Officer in question has not been questioned and the principal issue is that before the search and the impugned decision is taken, the concerned Officer did not have materials to construe reasons to believe regarding commission of an offence. Such defence is apparently fallacious inasmuch, as this Court is of the prima facie view that materials were there before the competent authority which were considered before coming to the conclusion of reasons to believe. Such satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 35. After taking into consideration the law laid down in the subject of interference at the stage of issuance of show cause notice, this Court is of the view that in most of the cases, such interference has been deprecated whereby enquiries have been stalled and investigation retarded which was initiated to find the actual facts. Therefore, only when the Court is of a firm view that there is no bona fide in the act of issuing show cause notice or the same is bad for want of jurisdiction, writ petition should not be entertained in a routine manner. 36. In view of the aforesaid discussions, this Court is of the view that present is not a fit case for invoking the extra-ordinary powers under Article 226 of the Constitution of India. Accordingly, the writ petition stands dismissed. It is, however, made clear that the dismissal is mainl ..... 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