Rupa Enterprises vs Collector Of Customs, Calcutta
1995 Latest Caselaw 990 Del

ORDER

Dr. M.K. Sharma, J.

1. The petitioner is a proprietarily firm based at Bombay and is engaged in the import and export of diverse items inclusive of taper roller bearings. It imported a consignment of 10161 pieces of Taper Roller bearings valued at Rs. 81,288 (CIF) from Poland under an invoice and filed a home consumption bill of entry for the same for clearance thereof. The invoice showed the goods as spare-parts of machine tools whereas the declaration in the bill of entry showed it to be components for manufacture of diesel oil engine other than Motor Vehicles and Tractors.

2. The petitioner received a show cause notice dated 8-5-1990 amended by corrigendum dated 15-5-1990 and two addend as dated 29-5-1990 whereby the petitioner was asked to show cause as to why the subject imported goods be not confiscated under Section 111(d) and (m) of the Customs Act, 1962 (hereinafter referred to as the Act) and also why penalty be not imposed on it under Section 112 of the Act. The petitioner replied to the aforesaid show cause notice contending, inter alia that the license was valid for the import of item in question and that there was no misdeclaration as M/s. Rishiklal & Co. is the actual user and importer in the eyes of law and as such, is entitled to take benefit of the concessional rate of duty.

3. The Collector of Customs by this order dated 15-12-1991 held that the petitioner came into possession of the license in question and the letter of authority on its behalf only on a date subsequent to the importation of the impugned goods and that the importer of the goods was the petitioner and not M/s. Rishiklal & Co., as claimed by the petitioner. It was further held that the petitioner had placed the order for the goods, opened the letter of credit, made remittance for the same and imported the goods without possessing a valid license and that, thereafter, it manipulated the documents to make it out that it held a valid letter of authority in respect of a valid license re-transferred in the name of M/s. Rishiklal & Co. In the light of the aforesaid findings the Collector ordered for confiscation of the goods with an option to redeem the same on payment of fine of Rs. 6,00,000 and also imposed a penalty of Rs. 1,00,000.

4. Being aggrieved the petitioner filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal (for short CEGAT) which was dismissed by order dated 12-10-1993.

5. The petitioner, thereafter, instead of exhausting the statutory remedy, approached this court under Article 226 of the Constitution of India challenging the aforesaid orders passed by the Collector (Customs) and the CEGAT. This writ petition was filed by the petitioner in this court on 28-2-1994. It appears that the writ petition was not filed properly and accordingly, on 29-4-1994 this Court directed the petitioner to file the proper paper books. Complete set of paper books was filed by the petitioner on 5th June, 1994. Thereafter on two occasions when the writ petition was listed for admission, the counsel for the petitioner sought for time and the same was granted. The writ petition was again listed for admission on 19-10-1994 when the following order was passed by this Court :

"Mr. Rawal will satisfy us on the next date of hearing as to whether the writ petition is maintainable if the petitioner had failed to avail of the remedy under Section 130 of the Customs Act. To be listed again on 2nd November, 1994."

6. Immediately thereafter when the matter was again taken up on 2-11-1994, this court passed the following order :

"We issue notice to show cause as to why rule nisi be not issued, returnable on 16 November, 1994, limited to the question if a petition in a case like this is maintainable in view of the provisions of Section 130 of the Customs Act, 1962. Notice may also issue to Mr. Madan Lokur, Central Government Standing Counsel."

7. In pursuance of the aforesaid order we heard the learned counsel for the parties on the question of maintainability of the writ petition. In order to appreciate the contention of the learned counsel for the parties on the question of maintainability of the writ petition under Article 226 of the Constitution of India. In view of the availability of and exhaustion of statutory remedy by the petitioner we may refer to the provision of the statutory remedy available to the petitioner as laid down in Section 130 of the Customs Act, the relevant portion of which is read as follows :

"130. Statement of case of High Court. (1) The Collector of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 129B (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in such form as may be specified by rules made in this behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court :

Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days.

(2)............

(3) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Collector of Customs or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly.

(4)......."

8. Mr. G. L. Rawal, learned counsel appearing for the petitioner contended before us that existence of alternative and statutory remedy does not absolutely bar the jurisdiction of the High Court under Article 226 of the Constitution of India. According to the learned counsel, the findings arrived at by the respondents prima facie are illegal and based on misinterpretation and misreading both on facts as also on law and against the pronouncements of the Supreme Court. He submitted that no investigation of disputed facts are involved and on the face of the record of the case misreading and misconstruing of the facts and law is apparent and as such, it is open to the petitioner to approach the High Court under Article 226 of the Constitution of India.

9. Mr. Madan Lokur, however, submitted before us that with regard to the rule of exhaustion of alternative remedy there is a distinction between the concept of alternative remedy and statutory remedy and that in the latter case the law is more stringent. His further submission was that there is nothing exceptional in this case which enables the petitioner to approach this court without exhausting the statutory remedy of reference available to it under the provisions of the Act, which, if refused by the Tribunal would lie before this court.

10. The law with regard to the controversy raised at this stage is well settled by a catena of decisions of the Supreme Court, it is settled law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of this court to issue a prerogative writ. The rule of exhaustion of statutory remedy before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law and in exceptional cases the court can issue such a writ notwithstanding availability and non-exhaustion of such statutory remedies. The courts have envisaged certain exceptions to the doctrine of exhaustion of statutory remedy, namely, where the proceedings are taken before a Tribunal under the provisions of law, which is ultra vires and in cases where there is a violation of the principles of natural justice. The further exception to the rule is also held to be when the inferior tribunal has acted without or patently in excess of or without jurisdiction.

11. In the present case, however, we find that the petitioner had already resorted to the statutory remedies available to it by filing an appeal, as envisaged within the ambit of the statutory remedy available to it under the provisions of the Act. According to the scheme of the aforementioned provisions of statutory remedies, the petitioner could have filed a reference application before the Tribunal under Section 130(1) of the Act and if declined, the petitioner could have approached this court under the provisions of Section 130(3) of the Act seeking for calling for a reference. Since the petitioner had already resorted to the statutory remedies available to it by filing an appeal before the Tribunal and getting a decision thereon, we see no reason why it should not exhaust the further statutory remedies available it under the provisions of the Act as enumerated above. The said remedies available to the petitioner are efficacious. The learned counsel drew our attention to the provisions of limitation prescribed for filing reference application. We, however, feel that the petitioner even approached this court only on 28-2-1994 through the writ petition, quite belatedly and then also not fulfillling all the requirements as laid down under the High Court rules and without filing complete set of paper books. Besides this, the court on the very first effective date, brought it to the notice of the petitioner that there is a doubt about the maintainability of the writ petition. In our considered view, none of the exceptions enumerated above and are attracted in the case of the petitioner.

12. Taking the entire facts and circumstances of the case into consideration and also in view of the totality of factors delineated above, it is not a fit case wherein the jurisdiction of the High Court under Article 226 of the Constitution of India can legitimately be invoked. This is so especially when a reference lies from the order of CEGAT. We are, therefore, inclined to reject this petition on the ground that the petitioner ought to have availed the remedy of preferring a reference application as provided for under sub-section (1) of Section 130 of the Act.

13. Before parting with the case, we, however, feel inclined to observe that in case the petitioner, choose to prefer a reference application under Section 130(1) of the Act, CEGAT will surely have regard to and consider the factum of pendency of the writ petition in this court and now being dismissed on the ground of availability of statutory remedy, for the purpose of construing sufficient cause.

14. In the result, this writ petition is dismissed. There will be no order as to costs.