Mayank Agrawal Prop. Maa Janani ... vs Union Of India Thru. Reveune Secy. ...
2023 Latest Caselaw 6995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 

 
Case :- WRIT TAX No. - 60 of 2023
 

 
Petitioner :- Mayank Agrawal Prop. Maa Janani Jewellers
 
Respondent :- Union Of India Thru. Reveune Secy. Ministry Of Finance, Govt. Of India New Delhi And Another
 
Counsel for Petitioner :- Anand Kumar Singh
 
Counsel for Respondent :- A.S.G.I.,Dipak Seth
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Manish Kumar,J.

Heard learned counsel for the petitioner, Sri Ambrish Rai, learned Standing Counsel for the Union of India and Sri Dipak Seth, learned counsel for the respondent no. 2.

Sri Dipak Seth, learned counsel for the respondent no. 2 has raised a preliminary objection regarding the maintainability of the present writ petition for quashing of the order dated 01.11.2022 passed under Section 111 and various sub-clauses thereof, under Section 115(2) and also under Section 112 and its various sub-clauses including Section 114 of the Customs Act, 1962 (hereinafter referred to as the Act, 1962) . He has pointed out Section 129A of the Act, 1962.

Learned counsel for the petitioner says that the order impugned has been passed in gross violation of the principles of natural justice. He has relied upon the judgement of the Hon'ble Supreme Court passed on 03.09.2021 in Civil Appeal No. 5121 of 2021 (Arising out of SLP (C) No 13639 of 2021 @ D No.11555 of 2020) in the case of the Assistant Commissioner of State Tax Appellant(s) and Others vs. M/s Commercial Steel Limited, in which in paragraph 12 it has been observed that where there is violation of principles of natural justice, alternate remedy of appeal is not an absolute bar for exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.

However, this Court having gone through the judgement relied by the counsel for the petitioner but finds that the Court in paragraph 12 of the said judgment has observed as under:-

"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 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."

In the case of petitioner, notice was served upon him therefore, it cannot be said that the order has been passed in violation of principles of natural justice.

This Court is bound by the Constitution Bench rendered in the case of N.P. Ponnuswami vs. Returning Officer [AIR 1952 SCR 2018] which says that rights and liabilities created by a particular statute are governed by a statutory remedy available therein and the statutory remedy should first be availed before approaching the High Court in extraordinary writ jurisdiction.

Accordingly, the present writ petition is dismissed only on the ground of availability of statutory remedy to the petitioner to file an appeal.

Order Date :- 3.3.2023

Nitesh