9911796707
TMI Blog1995 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... s been short levied in respect of the Bills of Entries 2091 to 2130 all dated 29th November, 1990 by reason of collusion, wilful mis-statement deliberate mis-declaration and suppression of vital facts by the importer and their accomplices and therefore, I confirm the demand of duty amounting to Rs. 1,53,09,118.00 under Section 28 of Customs Act, 1962. I order that the said amount should be paid by the importer immediately." 2.The Collector also found that the goods were liable for confiscation under Section 111(d) and 111(m) of the Customs Act, 1962. The goods had been allowed clearance under an undertaking that they were not available for confiscation. Subsequently by the judgment impugned the Collector of Customs held that they were liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication proceedings on the writ petitioner. The learned Single Judge by the order under challenge in this appeal dismissed the writ application without going into the merits of the said order only on the ground of availability of an alternative remedy against the order under challenge in this appeal by way of filing an appeal before the Appellate Authority. 4.We have heard the learned Counsel for the parties and are of the view that the learned Single Judge was right in dismissing the writ petition on the ground of availability of alternative remedy. Therefore, the present appeal preferred against the judgment of the learned Single Judge has no substance. 5.Where a statute which creates right or obligation, provides for remedy of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r prolong the proceedings by one device or the other. The practice needs to be discouraged." 6In another case C.I.T. v. Ramendra Nath Ghosh reported in (1972) S.C.LL 4 Supreme Court cases 379, the Supreme Court took the same view. It said :- "(iii) The question whether the assessees had been served in accordance with the law or not is essentially a question of fact. The Income Tax Act provides for an appeal against the order under Section 33B. Normally the assessee should have gone up in appeal against the order under Section 33B. They should not have been allowed to invoke the extraordinary jurisdiction of the High Court. It cannot be said that the High Court had no jurisdiction to entertain the writ petitions though it should not have e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Authority under the Customs Act against the order challenged in the writ petition. 9.The learned Counsel urged that for availing the right of appeal, the appellant would be required to deposit the Excise Duty and the fine to the tune of Rs. 1,53,09,118/-. He submitted that the remedy provided is, therefore, onerous and illusory. Therefore, the writ petition could not be dismissed on the ground of availability of an alternative remedy by way of filing an appeal. The submission so made has no merit. A similar controversy arose before the Apex Court of India in Shyam Kishore & Others v. Municipal Corporation of Delhi & Another reported in AIR 1992 SC 2279. It was held : "A more satisfactory solution is available on the terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly onerous or such as to render the right of appeal totally illusory." 11.The learned Counsel for the appellant urged before us that as the appellant had not been served with the notice by the Customs Authorities, the present case could not be relegated at par with the decisions cited on behalf of the Customs Authorities. We are unable to agree with the submissions of Mr. Mullick on this question. 12.Mr. Mullick after drawing our attention to certain Annexures to the writ petition, sought to argue that service was not effected on the writ petitioner-appellant. Whereas, the learned Counsel appearing for the department sought to argue that service was duly effected under Section 153 of the Customs Act by reliance of the service return in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Authority. It is not disputed by Mr. Mullick, learned Counsel appearing on behalf of the appellant before us that the Appellate Authority has no jurisdiction to entertain the appeal on facts. Such being the position and in view of the decisions cited above, we are of the view that the learned Judge was justified in the facts and circumstances of the case to dismiss the writ application on the ground that the writ petitioner-appellant had an alternative remedy to file an appeal against the order passed by the Collector of Customs. We, therefore, do not find any merit in this appeal. Before parting with this order, one more decision on which Mr. Mullick relied needs to be discussed. This is the case reported in AIR 1968 Calcutta 174 (M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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