Madhya Pradesh High Court
M/S Jms Mining Pvt. Ltd. Through Vivek ... vs Assistant Commissioner Of Customs on 20 May, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
1 W.P. No. 14776/2025 & 7 others
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 20th OF MAY, 2025
WRIT PETITION No. 14776 of 2025
M/S JMS MINING PVT LTD.
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
WITH
WRIT PETITION No. 14777 of 2025
M/S JMS MINING PVT. LTD.
Versus
ASSISTANT COMMISSIONER OF CUSTOMS AND OTHERS
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
WRIT PETITION No. 14779 of 2025
M/S JMS MINING PVT. LTD. THROUGH ITS AUTHORIZED
SIGNATORY, MR. VIVEK SHAMRAO KAPGATE
Versus
ASSISTANT COMMISSIONER OF CUSTOMS INDORE AND
OTHERS
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 20-05-2025
19:11:27
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
2 W.P. No. 14776/2025 & 7 others
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
WRIT PETITION No. 14789 of 2025
M/S JMS MINING PVT. LTD. THROUGH ITS AUTHORIZED
SIGNATORY, MR. VIVEK SHAMRAO KAPGATE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
WRIT PETITION No. 14790 of 2025
M/S JMS MINING PVT. LTD. THROUGH VIVEK SHAMRAO
Versus
ASSISTANT COMMISSIONER OF CUSTOMS AND OTHERS
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
WRIT PETITION No. 14792 of 2025
JMS MINING PVT. LTD THROUGH MR. VIVEK SHAMRAO
KAPGATE
Versus
ASSISTANT COMMISSIONER OF CUSTOMS AND OTHERS
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 20-05-2025
19:11:27
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
3 W.P. No. 14776/2025 & 7 others
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
WRIT PETITION No. 16067 of 2025
JMS MINING PVT. LTD
Versus
PRINCIPAL COMMISSIONER OF CUSTOMS AND OTHERS
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
WRIT PETITION No. 16204 of 2025
M/S JMS MINING PVT. LTD. THROUGH ITS AUTHORIZED
SIGNATORY, MR. VIVEK SHAMRAO KAPGATE
Versus
PRINCIPAL COMMISSIONER OF CUSTOMS INDORE AND
OTHERS
Appearance:
Shri Sujit Ghosh - learned Senior Advocate with Ms. Mannat Warsi,
Ananya Goswami, on behalf of Nitin Singh Bhati - Advocate for the
petitioner.
Shri Prasanna Prasad - Advocate for the respondent.
RESERVED ON : 14.05.2025
PRONOUNCED ON : 20.05.2025
--------------------------------------------------------------------------------------------------------------
ORDER
Per: Justice Vivek Rusia
The petitioner has filed these petitions (W.Ps. Nos. 14776/2025,
14792/2025, 14777/2025, 14789/2025, 14790/2025 and 14779/2025)
under Article 226 of the Constitution of India, challenging the impugned
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
order dated 31.01.2025, in which the Assistant Commissioner of
Customs, Indore, rejected the application filed under Section 58 r/w
Section 65 of the Customs Act, 1962.
2. W.Ps Nos. 16067/2025 and 16204/2025 have also been filed by
the petitioner challenging the impugned notice for cancellation dated
24.04.2025 and 23.04.2025, respectively.
3. This order shall govern the disposal of the aforesaid Writ
Petitions. Regard being had to the similitude of the controversy involved
in these petitions, they have been heard analogously and disposed of by
this singular order. For the sake of convenience, facts of W.P. No. 14776
of 2025 are taken.
Facts of the case, in short, are as under: -
4. The petitioner is engaged in the business of mining and
production of coal across various locations in the country. The petitioner
participated in the auction proceedings conducted by the Government of
India through the Ministry of Coal and became the successful bidder.
The Ministry of Coal issued a vesting letter dated 03.03.2021 to the
petitioner whereby the petitioner has been granted exclusive authority to
undertake mining operations within the mining area and sale the coal.
The petitioner has been granted mining leases of the mines belonging to
South Eastern Coalfield Ltd., Western Coalfield Ltd. and other
coalfields for the purpose of extracting the coal and selling it in the
market.
5. The Central Board of Indirect Tax and Customs in exercise of
powers conferred under Sections 157, 143-AA r/w Section 65 of the
Customs Act, 1962, made (Manufacturing and Other Operations in
Warehouse Regulations, 2019) Scheme (hereinafter referred to as
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
"MOOWR Scheme"). The petitioner submitted an online application
under the MOOWR Scheme to do the manufacturing in the private
lowdown, i.e. mining area.
6. Under Regulation 4(1-ii), a person may be eligible may get
licence of a warehouse under Section 58 & 65 of the Custom Act
alongwith a permission to undertake manufacturing or other operations
in the warehouse. Under sub-regulation 4.2, an application for operating
under these regulations shall be made to the Principal Commissioner of
Customs or the Commissioner of Customs as the case may be.
7. After due verification, the Principal Commissioner of Customs or
Commissioner of Customs may grant permission to operate under the
provisions of these regulations. Under the aforesaid, the petitioner
submitted an application to the Assistant Commissioner of Customs,
Jabalpur Customs Division, Napier Town, Jabalpur on 28.03.2024 for
grant of licence for private bonded warehouse and permission for
manufacturing and other operations under Section 65 of the Customs
Act for facility located at "Urtan, Sohangpur South Eastern Coalfield
Ltd., Annuppur, Kotma". Vide letter dated 23.09.2024, the Assistant
Commissioner made certain queries to the petitioner. Vide response
letter dated 05.10.2024, the petitioner submitted clarifications of all the
queries in detail.
8. Learned Asst. Commissioner, after considering the provisions of
Section 58 and 65 of the Customs Act and the provisions of the
Regulation, concluded that the entire large and open mining area of
40795220.49 Sq. ft does not appear to be fit to get licensed as a private
bonded warehouse, irrespective of the fact of ownership over the mines
or resultant goods. Vide impugned order dated 31.01.2025, the Assistant
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
Commissioner, Customs Indore has rejected the application on the
ground that the MOOWR Scheme is only for the private bonded
warehouse and the benefit of the scheme cannot be extended to the
petitioner. Being aggrieved by the aforesaid order, the petitioner has
filed the present petition, i.e. W.P. No.14776/2025.
9. The petitioner has granted a licence to undertake the mining
operation at different locations i.e. Khairaha, Pandavpara, Dhankasa,
Vijay West and Urtan North under the SECL South East Coal Ltd.,
Western Coalfield Ltd. and other Coal Companies. For these locations
also, the petitioner applied for the grant of a private bonded warehouse.
Vide order dated 31.01.2025, the applications have been rejected on the
same ground which the petitioner has challenged in W.Ps.
No.14792/2025, 14777/2025, 14789/2025, 14790/2025 and 14779/2025.
10. So far as the other two mines located at Chattarpur and Churcha
are concerned, the petitioner had been granted a licence under Section
65 of the Customs Act, but now the notice for cancellation has been
issued by the respondents on 24.04.2025 and 23.04.2025, respectively.
Submission of the petitioner's senior counsel.
11. Shri Sujeet Ghosh, learned Sr. counsel appearing for the petitioner
submits that the petitioner is assailing the impugned order on the ground
of fraught with perversity and patent illegality committed by the
respondents on irrelevant factors the application has been rejected
without understanding the provisions of Section 65 of the Customs Act
and provisions of "MOORW Scheme".
Submission of respondent's counsel.
12. Shri Prasanna Prasad, learned counsel appearing on behalf of the
respondents contends that the writ petition is not maintainable as the
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
petitioner has remedy to file an appeal against the impugned order of
Assistant Commissioner before the Commissioner (Appeals) under
Section 128 of the Customs Act, 1962, thereafter, appeal under Section
129 to the Appellate Tribunal and appeal to the Supreme Court under
Section 130-E of the Act.
Appreciations and Conclusion
13. The petitioner filed an application under Section 65 r/w Section
58 of the Customs Act before the competent authority for grant of
licence. Authority after due consideration found that the licence to such
a large open mining area cannot be granted treating it to be a godown.
Before passing the order, the due opportunity of hearing was given to
the petitioner and clarifications were sought from the petitioner on
various points, therefore, the competent authority after following due
process of law has rejected the application for grant of licence.
14. Admittedly impugned order is appealable and the petitioner has a
remedy of appeal against the order of the Assistant Commissioner under
Sections 128, 129 and Section 130-E of the Customs Act, which are
reproduced below:-
"128. Appeals to [Commissioner (Appeals)].--(1) Any person aggrieved
by any decision or order passed under this Act by an officer of customs
lower in rank than a [Principal Commissioner of Customs or
Commissioner of Customs] may appeal to the [Commissioner (Appeals)]
[within sixty days] from the date of the communication to him of such
decision or order:
[Provided that the Commissioner (Appeals) may, if he is satisfied that the
appellant was prevented by sufficient cause from presenting the appeal
within the aforesaid period of sixty days, allow it to be presented within a
further period of thirty days.]
[(1A) The Commissioner (Appeals) may, if sufficient cause is shown at
any stage of hearing of an appeal, grant time, from time to time, to the
parties or any of them and adjourn the hearing of the appeal for reasons to
be recorded in writing:
Provided that no such adjournment shall be granted more than three times
to a party during hearing of the appeal.]
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
(2) Every appeal under this section shall be in such form and shall be
verified in such manner as may be specified by rules made in this behalf.
129A. Appeals to the Appellate Tribunal.--(1) Any person aggrieved by
any of the following orders may appeal to the Appellate Tribunal against
such order--
(a) a decision or order passed by the [Principal Commissioner of
Customs or Commissioner of Customs] as an adjudicating
authority;
(b) an order passed by the [Commissioner (Appeals)] under section
128A;
(c) an order passed by the Board or the Appellate [Commissioner
of Customs] under Section 128, as it stood immediately before the
appointed day;
(d) an order passed by the Board or the [Principal Commissioner of
Customs or Commissioner of Customs], either before or after the
appointed day, under section 130, as it stood immediately before
that day:
[Provided that no appeal shall lie to the Appellate Tribunal and the
Appellate Tribunal shall not have jurisdiction to decide any appeal
in respect of any order referred to in clause (b) if such order relates
to,--(a) any goods imported or exported as baggage;
(b) any goods loaded in a conveyance for importation into India,
but which are not unloaded at their place of destination in India, or
so much of the quantity of such goods as has not been unloaded at
any such destination if goods unloaded at such destination are short
of the quantity required to be unloaded at that destination;
(c) payment of drawback as provided in Chapter X, and the rules
made thereunder:
Provided further that] the Appellate Tribunal may, in its discretion,
refuse to admit an appeal in respect of an order referred to in clause
(b) or clause (c) or clause (d) where--
(i) the value of the goods confiscated without option having been
given to the owner of the goods to pay a fine in lieu of confiscation
under section 125; or
(ii) in any disputed case, other than a case where 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 is in issue or is
one of the points in issue, the difference in duty involved or the
duty involved; or
(iii) the amount of fine or penalty determined by such order, does
not exceed [two lakh rupees].
130E. Appeal to Supreme Court.--An appeal shall lie to the Supreme
Court from--
(a) any judgment of the High Court delivered--
(i) in an appeal made under section 130; or
(ii) on a reference made under section 130 by the Appellate Tribunal
before the 1st day of July, 2003;
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
(iii) on a reference made under section 130A, in any case which, on its
own motion or on an oral application made by or on behalf of the party
aggrieved, immediately after passing of the judgment, the High Court
certifies to be a fit one for appeal to the Supreme Court; or]
(b) any order passed [before the establishment of the National Tax
Tribunal] by the Appellate Tribunal 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.
15. At this stage, a recent decision of the Apex Court in the case of
The State of Maharashtra and Others v.Greatship (India) (Civil
Appeal No.4956 of 2022, decided on 20.09.2022) is required to be
referred to. The Apex Court in the case of United Bank of India v.
Satyawati Tondon and others, reported in (2010) 8 SCC 110, observed
and held that in a tax matter when a statutory remedy of appeal is
available, the High Court ought not to have entertained the writ petition
under Article 226 of the Constitution of India against the Assessment
Order by passing the statutory remedy of appeal. The Customs Act,
1962 is an Act where adequate, efficacious remedy is provided.
Therefore, we do not find any ground to interfere with the impugned
order under Article 226 of the Constitution of India.
16. In view of the above, the present petition, i.e. W.P.
No.14776/2025, fails and is hereby dismissed and consequently W.Ps.
No.14792/2025, 14777/2025, 14789/2025, 14790/2025 and 14779/2025
are also hereby dismissed.
17. So far as W.Ps. No.16067/2025 and 16204/2025 are concerned, as
on today, only the notice for cancellation has been issued to the
petitioner. The petitioner may submit a reply to the impugned show
cause notice, and if any adverse order is passed, then the petitioner shall
have a remedy of appeal.
NEUTRAL CITATION NO. 2025:MPHC-IND:13415
18. Accordingly, W.Ps. No.16067/2025 and 16204/2025 are also
hereby dismissed.
19. Let a photocopy of this order be kept in the record of connected
writ petitions.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Vatan
