Mohan Govindasami Andal Alagar vs The Commissioner Of ...
2021 Latest Caselaw 7720 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                       WP(C).No.850 OF 2021(E)


PETITIONERS:

      1        MOHAN GOVINDASAMI ANDAL ALAGAR
               S/O.GOVINDASAMI SESAIAH, HOUSE NO.30, OLD
               RAMAKRISHNAPURAM, 2ND STREET, TIRUPUR,
               TAMIL NADU - 641 607.

      2        RAMASWAMY BALAKRISHNAN,
               S/O.RAMASWAMY, 72, TSR LAY OUT MAIN ROAD, PENTACOSTAL
               MISSION, TIRUPUR, TAMIL NADU - 641 602.

               BY ADVS.
               SRI.P.JAYARAM
               SHRI. GIGI PAPPACHAN
               SRI.SARATH CHANDRAN K.B.

RESPONDENT:

               THE COMMISSIONER OF CUSTOMS(APPEALS)
               CUSTOMS HOUSE, COCHIN - 682 009.

               R1 BY SMT.KAVERY S THAMPI, SC.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.850/2021                  2


                               JUDGMENT

Dated this the 5th day of March 2021

By this writ petition, the petitioners, who had suffered a

common order at Ext.P2 against which a joint appeal, Ext.P3, is

filed before the Appellate Authority, challenge the communication

dated 24.12.2020 directing them to file separate files challenging

the said common order. The impugned communication directing

the petitioners to file separate files is at Ext.P1.

2. Heard both sides.

3. Learned counsel for the petitioners vehemently argued

that there is no provision or rule directing the petitioners to file

separate appeals when petitioners have suffered a common order,

Ext.P2 and when there are dissatisfied with the said order.

4. Learned Standing Counsel appearing for respondent

opposed the writ petition by contending that the appeals are

required to be filed in prescribed forms and particulars to be given

differently as far as both petitioners are concerned. It is

submitted that the appeals challenging the Appellate Order lies

before the Customs, Excise & Service Tax Appellate Tribunal

(CESTAT) and as per the relevant rule, those appeals are to be

filed separately.

5. I have considered the submissions so advanced and

perused the materials placed before me. The petitioners,

aggrieved by the common order which is at Ext.P2 passed by the

Joint Commissioner of Customs, had filed joint appeal challenging

the said order. The operative portion of the said order reads thus:

"a. I absolutely confiscate the seized foreign currency notes of 35,000 US Dollar valued at Rs 24,36,000/- under Sections 113 (d),113 (e) and 113 (h) of the Customs Act, 1962 read with Sections 13 (2) of the Foreign Exchange Management Act, 1999.

b. I absolutely confiscate the material objects viz. two numbers of pants used for concealing the foreign currency, having no commercial value, under Section 119 of the Customs Act, 1962.

c. I impose a penalty of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) under Section 114 of Customs Act, 1962 read with Section 13(1) of Foreign Exchange Management Act, 1999 on Shri Mohan Govindasami Andal Alagar, S/o Shri Govindasamy Scsaiah, House No.30, Old Ramakrishnapuram, 2nd Street, Tiruppur-641607, Tamilnadu.

d. I impose a penalty of Rs. 2,00,000/- (Rupees Two Lakhs only) under Section 114 of Customs Act, 1962 read with Section 13(1) of Foreign Exchange Management Act, 1999 on Shri Ramaswamy Balakrishnan, S/o Shri. Ramaswamy, 72 TSR Layout Main Road, Pentecoastal Mission, Tiruppur-641602, Tamilnadu. e. This order is issued without prejudice to any other action that may be taken against the Noticee either under this act or under any other act for the time being in force in the REPUBLIC OF INDIA".

6. It is clear from the order in original that the adjudicating

authority has ordered confiscation of foreign currency seized from

the 1st petitioner. The adjudicating authority has imposed penalty

of Rs.1.50 lakhs on the 1st petitioner and Rs.2 lakhs on the

2nd petitioner in exercise of the powers under Section 114 of the

Customs Act, 1962 read with Section 13(1) of Foreign Exchange

Management Act, 1999 by giving separate findings.

7. The appeal at Ext.P3 is undisputedly a joint appeal filed

by both petitioners feeling aggrieved by the order passed by the

adjudicating authority which is a common order. Rule 3(1) of the

Customs (Appeals) Rules, 1982 provides that the appeal under

Section 128 is required to be filed in Form No.CA-1 provided under

Chapter V of the said Rules. Form No.CA-1 contains seven

particulars to be incorporated. Some of such particulars are date

of communication of the decision or order appealed against,

whether duty or penalty or both is deposited and if not, whether

any application dispensing with such deposit is moved. It is thus

clear that separate information can be there if the appeals are

filed by different aggrieved persons.

In the light of the prescribed form for appeal, it will not be

proper to entertain join appeal particularly when the consequence

suffered by aggrieved persons are different. Similarly, statement

of facts as well as relief claimed in appeal as stated in the

prescribed form can be different for each aggrieved person.

Hence, though the adjudicating authority can pass a common

order affecting more than one person, the affected persons are

supposed to file separate appeals so as to enable the Appellate

Authority to deal with the same conveniently. On this backdrop,

the respondent is even justified in relying on Rule 6 of the

Customs, Excise and Service Tax Appellate Tribunal (Procedure)

Rules, 1982 which deals with next appeal which lies to the

Customs, Excise and Service Tax Appellate Tribunal. The

communication at Ext.P1 as such cannot be said to be an illegal

communication. The same cannot be interfered by this Court.

This writ petition is therefore dismissed.

Sd/-

A.M.BADAR

JUDGE

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APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LETTER/NOTICE DATED 24/12/2020 DIRECTING THE PETITIONERS TO FILE SEPARATE APPEALS IN CHALLENGE OF THE ORDER-IN-ORIGINAL NO.106/2020 DATED 28/08/2020.

EXHIBIT P2 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.106/2020 DATED 28/08/2020 ISSUED BY JOINT COMMISSIONER, OFFICE OF THE COMMISSIONER OF CUSTOMS, COCHIN.

EXHIBIT P3 TRUE COPY OF THE APPEAL DATED 09/12/2020 SUBMITTED BY THE PETITIONERS BEFORE THE COMMISSIONER OF CUSTOMS (APPEALS) AGAINST ORDER-IN-ORIGINAL NO.106/2020 DATED 28/08/2020 ISSUED BY JOINT COMMISSIONER, OFFICE OF THE COMMISSIONER OF CUSTOMS, COCHIN ALONG WITH ACKNOWLEDGMENT ISSUED FROM THE OFFICE OF THE COMMISSIONER OF CUSTOMS ON THE FILING OF THE APPEAL.

RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp