Calcutta High Court
Anowar Hussain vs Union Of India & Anr on 23 February, 2021
ORDER SHEET
WPO 194 of 2020
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
ANOWAR HUSSAIN
VS.
UNION OF INDIA & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 23rd February, 2021
Mr. Arijit Chakrabarti, Mr. Debaditya Banerjee, Mr.
Nilotpal Chowdhury, Mr. Prabir Bera, Advocates for the petitioner.
Mr. Amitabrata Roy, Mr. Bhaskar Prasad Banerjee,
Advocates for Customs Authority.
Mr. Santosh Kr. Pandey, Advocate for Union of India.
The Court : The petitioner has challenged an order of adjudication
passed by the Principal Commissioner of Customs (Prev.), W.B. dated 8 th
July, 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 (d) of the operative portion
of the said order dated 8th July, 2019 which provides as follows :
"(d) I impose penalty for Rs.12,00,000/- (Rupees Twelve Lakh only) on
Noticee no.1 i.e. Shri Anowar Hussain under Section 112(b) of the
Customs Act, 1962 for his active involvement in the act of smuggling of
gold bars of foreign origin."
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
2
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. 90,00,000/- by the adjudicating authority. In such
circumstances, the imposable penalty, if any, at the highest would have
been only Rs.90,000/-, not Rs.12,00,000/- 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 when penalty can be imposed at a rate higher than 10% of the
value of the confiscated goods. The petitioner has also referred to the reply
to show cause cum written submission of the petitioner 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. In this context 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 8 th July, 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. 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. The respondents say that no leverage should be given
to the petitioner on not having preferred an appeal when such remedy was
available to the petitioner.
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.)
pa
