Calcutta High Court
Raju Adash vs Union Of India & Anr on 23 February, 2021
OD-2
ORDER SHEET
WPO 195 of 2020
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
RAJU ADASH
VS.
UNION OF INDIA & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 23rd February, 2021
Appearance:
Mr. Arijit Chakrabarti, Adv.
Mr. Debaditya Banerjee, Adv.
Mr. Nilotpal Chowdhury, Adv.
Mr. Prabir Bera, Adv.
...for the petitioner
Mr. Sourav Mondal, Adv.
...for Union of India
Mr. Amitabrata Roy, Adv.
Mr. Bhaskar Prasad Banerjee, Adv.
...for respondent no.2
The Court : The petitioner has challenged an order of adjudication
passed by the Principal Commissioner of Customs (Prev.), W.B. dated 26th
December, 2019, inter alia, on the ground that the same is without
jurisdiction and in violation of principles of natural justice. The petitioner
refers to the finding of the adjudicating authority under serial (49.2) of the
operative portion of the said order dated 26th December, 2019 which
provides as follows :
"(49.2) I impose penalty for Rs.50,00,000/- (Rupees Fifty Lakhs) only
upon Shri Raju Adash under Section 112(a) & 112(b) of the Customs
Act, 1962 for his act of omission and commission, as discussed herein
above;"
Referring to this portion of the order and relying upon Section 112(b)
(ii) of the Customs Act, 1962 it is submitted by the petitioner that the
penalty which could have been imposed at the highest is 10% of the total
value of the confiscated goods. The total value of the confiscated goods have
been arrived at Rs.3,00,08,417/- by the adjudicating authority. In such
circumstances, the imposable penalty, if any, at the highest would have
been only Rs.3,00,000/- and odd and not Rs.50,00,000/- as held by the
adjudicating authority. To further elucidate this contention the petitioner
has relied upon a judgment reported in 2016 (336) E.L.T.230 (Cal.) [Gopal
Saha Vs. Union of India]. Referring to the said judgment, the petitioner says
that the gold confiscated is not a prohibited goods as indicated in Section
112(b)(i) of the said Act but is covered by Section 112 (b) (ii) thereof. The
petitioner has also referred to the other portions of the impugned order to
demonstrate the violation of principles of natural justice. It is also submitted
by the petitioner that the embargo of alternative remedy in the instant case
will not operate inasmuch as the petitioner is challenging the adjudicating
order inter alia on the ground of jurisdiction and violation of principles of
natural justice. The petitioner therefore says that the order of adjudication
should be set aside and the matter be referred to the adjudicating authority
for being decided afresh.
On behalf of the respondent it is submitted that the order impugned is
an appellable order under the provision of Section 129A of the Customs Act,
1962. On this ground the respondent cites a judgment reported in 2020
SCC OnLine SC 440 [Assistant Commissioner (CT) LTU, Kakinada and
Others Vs. Glaxo Smith Kline Consumer Health Care Limited] and submits
that the instant writ petition should not be entertained. It is also submitted
on behalf of the respondent that the order impugned is dated 26th
December, 2019. The limitation period available for preferring the appeal is
three months but the same, however, can be extended on sufficient grounds
being shown. The writ petitioner after expiry of the ordinary limitation period
of 90 days has approached this Court in exercise of its writ jurisdiction and
as such as on date the petitioner is not even entitled to prefer the appeal.
This Court, therefore, should not extend any leverage to the petitioner. It is
also submitted that the judgment and order in Gopal Saha (supra) has been
appealed against in this Court and an order of stay has been granted which
is still in subsistence.
After considering the submissions made by the parties and materials
on record, this Court is of the view that the bar of alternative remedy does
not operate in the event an appellable order is challenged on the ground of
jurisdiction and violation of principles of natural justice. This issue in the
instant case requires more detailed hearing which can be done only after
calling for affidavits.
Let affidavit-in-opposition be filed within four weeks from date; reply
thereto, if any, within two weeks thereafter. Liberty to mention after eight
weeks for inclusion in the list under the heading 'Hearing'.
(ARINDAM MUKHERJEE, J.)
sp3
