In The High Court At Calcutta Constitutional Writ Jurisdiction Original Side WP830of 2013 Sanjay Danchand Ghodawat -Vs.Additional Commissioner of Customs (Port) Kolkata & ORS.Before : The Hon’ble Justice Arijit Banerjee For the petitioner : Mr.J.P.
Khaitan, Sr.Adv.Mr.Arijit Chakraborty, Adv.For the respondents : Mr.Somnath Ganguli, Adv.Ms.Manasi Mukherjee, Adv.Heard On : 12.05.2015, 05.06.2015, 09.06.2015, 23.06.2015 21.07.2015, 23.07.2015, 16.11.2015, 02.11.2016 12.01.2017, 16.01.2017, 30.01.2017.
06.02.2017 CAV On : 08.02.2017 Judgment On : 21.09.2017 Arijit Banerjee, J.:(1) An order dated 11 June, 2013 passed by the Addl.
Commissioner of Customs (Port).Kolkata being the respondent No.1 (hereinafter referred as the ‘respondent’) on an adjudication proceeding ordering confiscation of a vehicle imported by the petitioner, directing the petitioner to pay differential duty amounting to Rs.25,91,844/- and penalty of equal amount and further penalty of Rs.2 lacs imposed on the petitioner, is under challenge in the present writ application.
Admitted facts of the case:- (2) The petitioner imported a motor vehicle, viz, a right hand drive Hummer H2 SUV in the year 2007 upon payment of concessional customs duty of Rs.26, 59,584/-.
The import of the said vehicle in the petitioner’s name was arranged by one Kailash Palany.
(3) On the basis of investigation, a show-cause notice dated 13 September, 2012 was issued to the petitioner and six other persons involved in the import of the vehicle, under Sec.
124 of the Customs Act, 1962 read with the proviso to Sec.
28 of the Act.
(4) The allegation in the show-cause notice was that the vehicle was converted from left hand drive to right hand drive and had changed hands before being imported into India and as such was not eligible for concessional duty.
Further, the cost of conversion from left hand drive to right hand drive had not been included in the assessable value of the vehicle and as such duty was short paid at the time of import.
The show-cause notice proposed to recover differential customs duty amounting to Rs.25,91,844/- with interest and to confiscate the vehicle under Clauses (d) and (m) of Sec.
111 of the Customs Act.
Penalty equal to the differential duty was proposed to be imposed under Sec.
114A of the Act as also under Sec.
114AA of the Act for false declaration and use of false documents.
(5) The show-cause notice was issued by the Addl.
Director, Directorate of Revenue Intelligence (in short DRI) but was answerable to the Joint/Addl.
Commissioner of Customs (Port).Kolkata, being the respondent No.1.
The reply was to be filed within 30 days.
Personal hearing was proposed to be granted.
(6) On 24 December, 2012 the petitioner received a notice dated 10 December, 2012 intimating that a hearing had been fixed on 26 December, 2012.
By a letter dated 24 December, 2012, the petitioner through his Advocate requested for adjournment of the hearing.
(7) By a notice dated 31 December, 2012 the second hearing was fixed on 5 February, 2013.
By a letter dated 1 February, 2013 the petitioner through his Advocate informed the Adjudicating Authority that the petitioner was approaching the Settlement Commission for payment of differential duty with interest and requested the Authority to adjourn the personal hearing and adjudication of the showcause notice.
(8) By a letter dated 7 February, 2013 the Assistant Commissioner of CustoMs.Central Adjudication Cell (Port) called upon the petitioner to provide a copy of the settlement application.
On the same date the said Authority issued a notice fixing the third date of hearing on 12 March, 2013.
(9) On 11 February, 2013, the petitioner wrote a letter to the Addl.
Director, DRI enclosing demand drafts for differential duty of Rs.25,91,844/- and interest thereon of Rs.20,67,653/- stating that the petitioner was approaching the Settlement Commission.
On 14 February, 2013 the Addl.
Director, DRI addressed a letter to the Commissioner of Customs (Port).with a copy marked to the petitioner, enclosing the said two bank drafts and copy of the petitioner’s letter dated 11 February, 2013.
(10) On 8 March, 2013 the petitioner addressed a letter through his Advocate to the respondent in respect of the personal hearing fixed on 12 March, 2013, stating that the petitioner was filing an application before the Settlement Commission and requesting not to adjudicate on the show-cause notice against the petitioner.
It was stated in the letter that a copy of the settlement application would be submitted within next two weeks.
(11) The impugned order was passed on 11 June, 2013 and copy thereof was received by the petitioner on 17 June, 2013.
Contention of the petitioner:(12) Mr.Khaitan, learned Sr.Counsel appearing for the petitioner submitted that the settlement application was prepared by the petitioner’s advocate at Mumbai and was duly signed and made ready for the purpose of filing on 8 May, 2013.
However, such filing was held up pending arrangement of deposit of the settlement application fee of Rs.1,000/- at Calcutta.
The petitioner’s advocate assured him that in view of the letters dated 1 February, 2013 and 8 March, 2013 requesting the respondent not to proceed with the adjudication, the respondent would grant an opportunity of hearing before adjudication.
(13) Learned Counsel in particular highlighted two paragraphs of the order impugned being paragraphs 2 and 4 which read as follows:“2.Shri Suresh Halde replied to the show cause notice vide letter dt.
23-10-12 Shri Manoj Baid replied to the show cause notices for himself and his firm vide letters dated 2610-12.
Shri Kailash Palani replied vide letter dt.
21-12-12 & 02-02-13.
Shri Balu patil replied through his advocate vide letter dt.
Shri Charanjit Singh replied through his advocate vide letter dt.
As the other noticees did not reply and a considerable time was elapsed, personal hearing in the matter was granted on 26-12-12, 05-02-13 and 12-03-13.
Shri Manoj Baid appeared for himself and his firm on 26-12-12.
Shri M.L.Grover, Advocate, appeared on behalf of Shri Kailash Palany on 05-02-13.
Shri Sanjay D.
Ghadawat informed vide letter 01-02-13 through his advocate that they are approaching Settlement Commission.
Others did not appear for the hearing on 12-03-13.”
4. Through there is no reply from the importer, his advocate M/S.Nagarkar Associates vide letter dt.
01-022013 informed that the said noticee is approaching Settlement Commission, Kolkata, after payment of differential duty of Rs.25,91,844/-, along with interest under Section 127B of the Customs Act, 1962.
They further undertook through the letter that they will produce evidence of payment of differential duty and interest on or before 05-02-13 and requested not to adjudicate the case till date.
They also promised to produce the copy of application submitted before Hon’ble Settlement Commission.
However, nothing heard from the importer’s side.
An inquiry was made by the department with Settlement Commission.
Senior Investigating Officer, Settlement Commission, Kolkata, informed vide letter No.2/Misc-Corres./2011-SC(KB)/1006 dt.
09-04-13 that, “No such application has been filed before the Addl.
Again vide letter No.2/Misc-Corres./2011SC(KB)/1295 dt.
03-05-13, Sr.Investigating Officer informed about non-filing of any application by Shri Sanjay D.
In the meantime, DRI, Kolkata vide letter No.136/Kol/App/2012/560-562 dt.
14-02-13 forwarded Demand Drafts No.000509 and 000510 both dated 11-0212 drawn on HDFC Bank Ltd., Jaysingpur Branch for Rs.25,91,844/- and Rs.20,67,653/- received from Shri Sanjay D.
Ghodawat, in respect of the demand in the present show cause notice.
Though the importer did not reply to the show cause notice, his advocate attended the hearing on 05-02-13 and now they have paid demanded differential duty and an amount of interest as calculated by them.
Thus, they agree to the allegations and the charges are proved.” (14) Mr.Khaitan submitted that a bare perusal of the said two paragraphs would show that:(i) the respondent proceeded on the basis as if the petitioner’s letter dated 1 February, 2013 was the last communication received by him from the petitioner; (ii) even with reference to the letter dated 1 February, 2013, the respondent did not advert to the prayer made therein for adjournment of the hearing fixed on 5 February, 2013; (iii) the respondent recorded that the petitioner’s advocate attended the hearing on 5 February, 2013 when in fact the petitioner’s advocate by his letter dated 1 February, 2013 had prayed for adjournment and had not attended any hearing on 5 February, 2013; (iv) there is no reference to the petitioner’s letter dated 8 March, 2013 requesting that the case be not adjudicated upon and stating that the settlement application would be submitted within two weeks; (v) the respondent recorded that “…………Though the importer did not reply to the show cause notice, his advocate attended the hearing on 5 February, 2013 and now they have paid demanded differential duty and an amount of interest as calculated by them.
Thus, they agree to the allegations and the charges are proved.” Learned Counsel submitted that the impugned order is ex facie unreasonable and perverse.
(15) It was next submitted that the respondent wrongly proceeded on the basis that the petitioner had agreed to the allegations made in the show cause notice.
The petitioner never agreed to the allegations in any written communication or otherwise.
In the absence of such agreement, the respondent could not have proceeded to hold that the charges were proved.
The wording of the order would show that the respondent proceeded on the basis that after a supposed hearing on 5 February, 2013 the petitioner had decided to pay the demanded differential duty along with interest, as if such payment was a natural step to take after the hearing.
It was open to the respondent to independently arrive at a finding that the charges had been proved but no such finding could be arrived at on the basis of assumption that the petitioner had admitted the allegations in the show cause notice.
(16) Mr.Khaitan submitted that the records would show that the petitioner paid the differential duty and interest solely for the purpose of approaching the Settlement Commission as required by Clause (c) of the FiRs.Proviso to Sec.
127B (1) of the Customs Act and such payment was not by way of admission of liability before the respondent.
One of the requirements of Sec.
127B for approaching the Settlement Commission is that the duty liability disclosed before it should not have been disclosed before the proper officer.
Further, payment of any duty or interest was not required before adjudication.
The respondent could not have attributed to the petitioner any conduct which would have disqualified the petitioner from approaching the Settlement Commission.
(17) The respondent did not consider the petitioner’s letter dated 8 March, 2013 by which the respondent had been requested not to proceed with the adjudication in so far it related to the petitioner and that he would submit the settlement application within next two weeks.
If the respondent had considered the petitioner’s said letter and the contents thereof, he could not have held that the petitioner had agreed to the allegations made against him.
(18) It was next submitted that in the facts and circumstances of the case in the fitness of things, it was incumbent upon the respondent to extend a final opportunity of hearing to the petitioner before passing an ex parte order.
The respondent ought to have responded to the petitioner’s letter dated 8 March, 2013 and ought to have provided a final opportunity to the petitioner to submit copy of the settlement application or alternatively to address the show cause notice on merits and attend a personal hearing.
Such opportunity was required to be given also because the respondent adjudicated the matter long three months after the last date of hearing.
(19) Learned Counsel then submitted that even the proviso to Sec.
122A(2) of the Customs Act did not stand in the way of the respondent granting another hearing to the petitioner.
The said proviso permits three adjournments.
Hence, a fourth date of hearing could be fixed.
(20) Mr.Khaitan submitted that the respondent drew upon his imagination, imported facts and circumstances not apparent from the record, ignored relevant materials forming part of the record and based his conclusions on conjectures and surmises.
When a Court of fact acts on material which is partly relevant and partly irrelevant it is impossible to say to what extent the mind of the Court was affected by the irrelevant material considered by it in arriving at its finding.
Such a finding is vitiated because of the use of inadmissible material.
In this connection learned Counsel relied on the Supreme Court decisions in the cases of CIT-vs.-Daulat Ram Rawatmull, (1973) 87 ITR349and CIT-vs.-S.P.Jain, (1973) 87 ITR370 (21) Learned Counsel then submitted that at the time of filing of the instant writ petition and until the amendment to the proviso to Clause (b) of Sec.
127A of the Customs Act by the Finance Act, 2015 came into effect on 14 May, 2015, a settlement application could be filed in a case where the Writ Court remanded the matter to the adjudicating authority for fresh adjudication.
The question that arises is whether or not the petitioner can approach the Settlement Commission if the impugned order dated 11 June, 2013 is set aside and the matter is remanded back for fresh adjudication.
Learned Counsel submitted that the respondent should not be permitted to take advantage of their own wrong and principles of equity should be applied and the relief should be moulded by this Court in order to do justice to the parties.
(22) Mr.Khaitan finally submitted that by wrongly passing the impugned order the respondent prevented the petitioner from approaching the Settlement Commission.
Had the impugned order not been passed, the petitioner would have been able to approach the Settlement Commission in the year 2013, long before the amendment became effective from 14 May, 2015.
However, because of the passing of the impugned order, the petitioner has been constrained to approach this Court in its writ jurisdiction.
During the pendency of this writ application, the aforesaid amendment came into force.
The respondent authorities should not be permitted to take advantage of their wrongful and illegal act in passing the impugned order and this Court should permit the petitioner to approach the Settlement Commission after setting aside the impugned ex parte adjudication order.
In this connection, learned Counsel relied on the decision of the Hon’ble Apex Court in the case of Priyanka Overseas PVT.Ltd.-vs.-Union of India, 1991 (51) ELT185 paras 14, 16, 35, 36 and 39.
Contention of the respondents:(23) Learned Counsel for the respondents submitted that repeated opportunities were given to the petitioner to appear before the Adjudicating Authority and to file written submissions.
By the letter dated 7 February, 2013 the Assistant Commissioner of CustoMs.Central Adjudication Cell (Port) informed all the noticees including the petitioner of the hearing fixed on 12 March, 2013.
In the said letter it was clearly mentioned that no further adjournments would be allowed and the case would be decided as per facts and evidence on record.
(24) Although by his Advocate’s letter dated 8 March, 2013 the petitioner sought for further adjournment and undertook to submit a copy of the settlement application within next two weeks, no such application was submitted before the Adjudicating Authority.
As nothing was heard from the petitioner even after lapse of more than two weeks from the last communication made by the petitioner, after verification from the office of the Settlement Commission that no settlement application had been filed by the petitioner, the Adjudicating Authority passed the order dated 12 June, 2013.
The petitioner never appeared before the DRI during investigation and never disputed the allegations made against him either by giving a reply to the show cause notice issued by the DRI or by filing any submission before the respondent Adjudicating Authority in spite of getting ample opportunity of doing so.
Moreover, in spite of getting sufficient opportunity to approach the Settlement Commission, the petitioner did not do so for a long period of nine months from the date of issuance of the show cause notice on 13 September, 2012 till the order dated 12 June, 2013 was passed.
The respondent has scrupulously observed the principles of natural justice by giving repeated opportunities to the petitioner and also went to the extent of inquiring from Settlement Commission as to whether or not any application had been filed by the petitioner.
(25) The order impugned has been passed taking into consideration all the relevant facts and after giving adequate opportunity to the petitioner to defend the charges made against him in the show cause notice.
The respondent did not in any manner act in excess of jurisdiction in passing the order under challenge.
The petitioner only tried to drag the issue by contending that he would file an application before the Settlement Commission under Sec.
127B of the Customs Act which he did not do even after passage of nine months from the issuance of the show cause notice.
The petitioner should not be allowed to take advantage of his own wrong.
Once adjudication order is passed and adjudication proceeding is no more pending, the avenue of approaching the Settlement Commission is no longer available to the importer.
The legislative intent behind framing of Sec.
127A(b) is that an importer who wants to approach the Settlement Commission, should do so during the pendency of the proceeding before the Adjudicating Authority.
The said provision is to enable a bona fide person to make a settlement proposal prior to taking a chance to have the claim adjudicated.
In this connection, learned Counsel relied on a decision of a learned Single Judge in Exotica Global PVT.Ltd.-vs.-Union of India, (2012) 4 CHN234 and the decision of the Hon’ble Division Bench of this Court in the same case reported in (2013) 296 ELT158 wherein the judgment and order of the learned Single Judge was upheld.
(26) As regards the point that learned Advocate for the petitioner did not appear before the respondent on 5 February, 2013, learned Counsel submitted that the order under challenge is based on available facts and evidence on record and submissions made by some of the noticees.
No averments made on behalf of the petitioner have been recorded in the entire order or relied upon by the respondent and hence, the order under challenge cannot be said to be based on any statement of the petitioner.
There is nothing perveRs.about the said order.
(27) Mr.Ganguli then submitted that by filing the present writ application the petitioner is trying to bye-pass the provisions of the Customs Act.
The petitioner tried his luck before the Adjudicating Authority and when the proceeding did not go his way, he wants to try his luck before the Settlement Commission by obtaining permission from this Court.
This should not be permitted.
In this connection, learned Counsel relied on a Division Bench judgment of this Court in MAT425of 2015 (Satish Kumar Sharma-vs.-Union of India & Ors.) (28) Learned Counsel finally submitted that the writ application is not maintainable in view of an efficacious alternative remedy being available to the petitioner.
In this connection learned Counsel relied on the following decisions:(i) Commissioner of Income Tax & Ors.-vs.-Chhabil Dass Agarwal, (2014) 1 SCC603 (ii) Union of India & Anr.-vs.-Guwahati Carbon Limited, (2012) 11 SCC651 (iii) Titaghur Paper Mills Co.LTD.& Anr.-vs.-State of Orissa & ORS.(1983) 2 SCC433 (iv) Nepa Agency Co.PVT.LTD.& Ors.-vs.-Union of India & ORS.(2015) 321 ELT620 Petitioner in reply:(29) As regards the point of availability of alternative remedy, learned Counsel submitted that the appeal before the Commissioner of Customs (Appeals) is not an adequate alternative or efficacious remedy since the Appellate Authority is not empowered to set aside the ex parte decision and remand the matter for fresh adjudication.
In this connection he referred to Sec.
128A(3) of the Customs Act.
He further submitted that if the appellate remedy was availed of the petitioner would not be able to approach the Settlement Commission in view of the provisions contained in the proviso to Clause (b) of Sec.
127A of the Act.
(30) As regards the respondent’s contention that the respondent was justified in proceeding on the basis that the petitioner had agreed to the allegations made in the show cause notice and in passing the order under challenge in view of the petitioner not filing reply to the show cause notice in spite of repeated opportunities being granted to him by the respondent, Mr.Khaitan submitted that the respondent in the impugned order does not say that he is holding against the petitioner because of lack of representation on the part of the petitioner.
On the other hand, the respondent draws upon supposed attendance of the petitioner’s advocate at the hearing on 5 February, 2013 which never took place, with which he links the subsequent payment on 11 February, 2013 of the differential duty with interest which was solely for the purpose of approaching the Settlement Commission.
This has completely vitiated the order.
He submitted that the impugned order has to stand or fall on its own and nothing can be imported therein.
Public orders made in exercise of statutory authority cannot be construed in the light of explanations subsequently given by the author of the order as to what he meant or what was in his mind or what was his intention in passing the order.
Orders of public authorities must be construed objectively with reference to the language used in the order itself.
Court’s View:- (31) The show cause notice was issued on 13 September, 2012.
The fiRs.hearing was fixed on 26 December, 2012 and the petitioner was duly intimated of the same.
The petitioner’s prayer for adjournment was allowed and the second hearing was fixed on 5 February, 2013.
The petitioner waited till 1 February, 2013 and again requested for adjournment of the hearing.
Such request was again granted and the hearing was re-fixed on 12 March, 2013.
The petitioner again waited till 8 March, 2013 and then requested for adjournment of the hearing.
The petitioner promised to submit a copy of the settlement application within the next two weeks.
However, the petitioner did not do so.
The impugned order was passed on 11 June, 2013.
(32) The main grievance of the petitioner appears to be that he has lost the opportunity of approaching the Settlement Commission.
This is because after the amendment of the definition of ‘case’ in Sec.
127(1) of the Customs Act, 1962, a case would not include a proceeding referred back to the Adjudicating Authority for a fresh adjudication by any Court, Appellate Tribunal or any other authority and hence, Sec.
127B of the Customs Act, which provides for application to Settlement Commission, would not be available to the petitioner.
This amendment to the definition of ‘case’ came into effect on 14 May, 2015 during the pendency of the writ petition.
(33) The petitioner contended that the respondents should have given one more adjournment as requested by the letter dated 8 March, 2013 and this was permissible under the proviso to Sec.
122A(2) of the Customs Act which permits three adjournments.
The petitioner’s further grievance is that since the impugned order was passed by the respondent three months after the last hearing, it would have been proper for the respondent to grant a personal hearing to the petitioner before passing the impugned order.
Learned Counsel further contended that there is no reference in the impugned order to the petitioner’s letter dated 8 March, 2013 and further the respondent proceeded on the erroneous basis that the petitioner’s Advocate attended the purported hearing on 5 February, 2013 when the same is palpably incorrect.
The respondent further erred in holding that the payment of the differential duty with interest by the petitioner amounted to admission of the charges brought against the petitioner in the show cause notice.
He submitted that these are errors apparent on the face of the order which should therefore be set aside and the petitioner should be allowed to approach the Settlement Commission.
(34) Learned Counsel for the respondent submitted that the petitioner was given sufficient opportunity to file reply to the show cause and represent his case.
Twice adjournments were granted to the petitioner.
The petitioner had nine months time from the issuance of show cause notice till the date of the impugned order to approach the Settlement Commission.
The petitioner was merely buying time and dragging the matter.
In spite of assuring to supply copy of the settlement application to the respondent by letter dated 8 March, 2013, within two weeks, the petitioner did not do so till the date of the order.
The petitioner’s conduct has not been honest and his approach has not been bona fide.
Hence, the petitioner does not deserve any order on the writ application.
(35) Mr.Khaitan, learned Sr.Counsel relied on the Apex Court’s decision in CIT (Central).Calcutta-vs.-Daulat Ram Rawatmull (supra).wherein the Apex Court observed that when a Court of fact acts on material partly relevant and partly irrelevant it is it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding.
Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises.
Similarly, if the Court of fact bases its decision partly on conjectures, surmises and suspicions and partly on evidence, in such a situation also an issue of law arises.
He also relied on a decision of the Hon’ble Apex Court in the case of CIT, Bihar and Orissa-vs.-S.P.Jain (supra).wherein it was observed, inter alia, that the High Court always has the jurisdiction to intervene if it appears that the Appellate Tribunal has misunderstood the statutory language because the proper construction of the statutory language is a matter of law, or it has arrived at a finding based on no evidence or where the finding is inconsistent with the evidence or contradictory to it or it has acted on material partly relevant and partly irrelevant or where the Tribunal draws upon its own imagination, imports facts and circumstances not apparent from the record, or bases its conclusions on mere conjectures or surmises or where no person judicially acting and properly instructed as to the relevant law could have come to the determination reached.
The case of Priyanka Overseas PVT.Ltd.-vs.-Union of India (supra).was relied upon by Mr.Khaitan in support of his submission that an authority cannot take advantage of its own wrongful and illegal act.
In such a case in molding the relief the Court has always applied principles of equity in order to do complete justice between the parties.
(36) Mr.Ganguli, learned Counsel for the respondent on the other hand relied on two decisions of this Court in support of his submission that the petitioner having tried his luck before the Adjudicating Authority and having suffered an adveRs.order, he cannot now pray for an opportunity of approaching the Settlement Commission.
In Exotica Global PVT.Ltd.-vs.-Union of India (supra).a learned Single Judge of this court observed, inter alia, as follows:“Upon the amendment to the relevant provisions in the Customs Act, the stage at which a settlement proposal or request can be received has been considerably whittled down.
There is a fundamental basis as to why the provision is more restricted in its operation.
It would defy logic and reason if persons as the present petitioner take a chance to have their matter or claim adjudicated before an authority under the statute and, upon failing in such misadventure, offer to pay a reduced amount than the amount found due.
It is evident that the fundamental basis in restricting of the relevant provision is to allow a bona fide person to make a settlement proposal prior to taking a chance to have the claim adjudicated.
But upon the claim being adjudicated and merely because the recovery has not been completed, a person would not be entitled to offer a lesser amount than what has been adjudicated to be due from him.” On appeal from the aforesaid decision the Hon’ble Division Bench upheld the order of the learned Single Judge and observed that only during the pendency of the proceeding before the Adjudicating Authority, the assesse can approach the Settlement Commission.
Once the adjudicating proceeding is over, the Settlement Commission cannot entertain an application.
(37) Mr.Ganguli relied on four decisions in support of his submission that in view of the availability of an efficacious alternative remedy, this writ application should not be entertained.
In CIT-vs.-Chhabil Dass Agarwal (supra).the Apex Court observed that where a statutory forum is created by law for redressal of a grievance, a writ petition should not be entertained ignoring such provision.
It should however be an effective remedy.
If an appellate remedy is provided, the appeal should not be one from ‘Caesar to Caesar’s wife’.
Similar principle has been reiterated in Union of India-vs.-Guwahati Carbon Limited (supra).(38) In Titaghur Paper Mills Co.Ltd.-vs.-State of Orissa (supra).a Bench of three learned Judges of the Hon’ble Apex Court observed, inter alia, that where a revenue statute provides a machinery for challenging an order of assessment, such order should be challenged in the manner provided and before the forum stipulated and in such cases ordinarily the writ court should not entertain an application.
(39) I am of the considered view that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of.
In the case of Whirlpool Corporation-vs.-Registrar of Trade Marks, (1998) 8 SCC1 the Apex Court observed that under Art.
226 of the Constitution of India, the High Court having regard to the facts of a case, has a discretion to entertain or not to entertain a writ petition.
The High Court has imposed upon itself certain restrictions one of which is that if an efficacious alternative remedy is available, the High Court would not normally exercise its writ jurisdiction.
(40) As I have held in the case of Nepa Agency Co.PVT.Ltd.-vs.-Union of India (supra).the customs law is a complete code by itself.
The Customs Act and the Rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code.
The order passed by the respondent in this case is an appealable order.
128 provides for a statutory appeal.
Mr.Khaitan argued that this statutory appeal is not an effective remedy since under Sec.
128A(3).the Commissioner (Appeals) cannot remand the matter back to the Adjudicating Officer.
Even assuming the Commissioner does not have that power, in my opinion, the same does not make the statutory appeal a non-efficacious remedy.
The petitioner had sufficient opportunity of contesting the adjudication proceeding on merits but it chose not to do so.
The respondent granted two adjournments to the petitioner.
By the notice dated 7 February, 2013 all the noticees including the petitioner were informed that no further adjournments would be allowed and if one failed to appear, the case would be decided as per the facts and evidence on record.
I cannot hold that there was breach of the principles of natural justice.
Had I come to that conclusion, I would have entertained this application in spite of availability of an alternative remedy.
But from the facts of the case it appears to me that the cannons of natural justice were sufficiently observed.
I am inclined to agree with the submission of learned Counsel for the respondent that the petitioner was procrastinating and was merely delaying the matter.
The respondent was well-justified in passing the impugned order ex parte as he could not be expected to defer the matter indefinitely.
(41) If the petitioner takes recouRs.to the alternative remedy of statutory appeal, he would not be prejudiced in any manner.
It is a comprehensive remedy and he can contest the order on merits and I propose to grant him that liberty.
If the petitioner has lost the opportunity of contesting the adjudication proceeding on merits in the fiRs.round, it is only himself that he can blame.
(42) As regards the contention of Mr.Khaitan that there are erroneous recordings in the order impugned to the effect that there was admission of liability or that the petitioner’s advocate attended the hearing on 5 February, 2013, the petitioner would be at liberty to assail such observations before the Appellate Authority.
I find no infirmity in the procedure and approach adopted by the respondent in conducting the adjudication proceeding.
It is well-established that the Writ Court is concerned not with the decision of an authority but what falls for scrutiny is the decision making process.
There was nothing illegal or unfair or unjust or arbitrary about the procedure adopted by the respondent.
The Writ Court is generally not concerned with the merits of the decision under challenge.
If the petitioner was serious about approaching the Settlement Commission, he ought to have been more diligent and he had sufficient time for filing a settlement application before the Settlement Commission.
It appears that he took a chance of getting a favourable verdict before the respondent and now that the order has gone against him, he prays for an opportunity to approach the Settlement Commission.
I am in full agreement with the view of the learned Judge in the case of Exotica Global PVT.LTD.(supra) extracted above, which was upheld by our Hon’ble Division Bench.
(43) In view of the aforesaid, this application fails and is dismissed.
However, if the petitioner prefers an appeal from the impugned order within four weeks from date, the petitioner shall be entitled to the benefit of Sec.
14 of the Limitation Act and the Appellate Authority shall decide the appeal on merits without going into the question of limitation.
The Appellate Authority shall also allow the petitioner to place his answer to the show cause notice on merits notwithstanding that the petitioner did not file his reply to the show cause notice before the Adjudicating Authority.
If such an appeal is filed within the time indicated, the Appellate Authority shall dispose of the appeal at an early date and preferably within six months from the date of filing of the appeal, strictly observing the principles of natural justice.
(44) WP No.830 of 2013 is accordingly disposed of, without, however, any order as to costs.
(45) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)