Madras High Court
M/S.Fourceess Diamond Pvt. Ltd vs The Joint Commissioner Of on 25 February, 2021
W.A.No.640 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2021
CORAM :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
W.A.No.640 of 2021
and
C.M.P.No.2840 of 2021
1. M/s.Fourceess Diamond Pvt. Ltd.,
Represented by its Managing Director
Shri Manmohan, Golden Complex,
Old No.128, New No.220,
NSC Bose Road, Sowcarpet,
Chennai - 600 079.
2. Shri.Manmohan ...Appellants
Vs
The Joint Commissioner of
Customs (Air Cargo),
Office of the Principal Commissioner
of Customs,
Chennai VII Commissionerate,
New Custom House, Meenambakkam,
Chennai - 600 027. ...Respondent
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent to set aside
the order dated 09.10.2020 passed in W.P.No.14756 of 2016.
1/12
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W.A.No.640 of 2021
For Appellants: Mr.Akhil.R.Bhansali
For Respondent: Mr.A.P.Srinivas
Senior Standing Counsel
JUDGMENT
(Delivered by T.S.Sivagnanam,J)
This writ appeal, filed by the writ petitioner, is directed against
the order dated 09.10.2020 passed in W.P.No.14756 of 2016, which was
dismissed on the ground that the appellant has no justifiable reasons to
bypass the alternative remedy available under the provisions of the Customs
Act before the Customs, Excise and Service Tax Appellate Tribunal ('the
Tribunal' for brevity).
2. The writ petition was filed challenging the Order-in-Original
No.132/2016 dated 22.02.2016, in and by which, the respondent herein
denied the exemption benefit claimed by the appellants by availing the
benefit of Customs Notification No.85/2004-Cus dated 31.08.2004 read
with Notification No.101/2004-Cus(NT) dated 31.08.2004 in respect of 6
bills of entry for the imports made by the first appellant; ordered for demand
of differential duty of Rs.20,85,317/- and for recovery in terms of the
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W.A.No.640 of 2021
proviso to Section 28(1)/Section 28(4) of the Act; ordered for recovery of
interest under Section 28AA/Section 28AB and held that the imported
goods are liable for confiscation under Section 111(m) and 111(o) of the
Customs Act, 1962. Further, since the goods were not physically available,
no order of confiscation was passed and imposed a penalty of
Rs.20,85,317/- on the first appellant and Rs.3,00,000/- on the second
appellant.
3. Mr.Akhil.R.Bhansali, learned counsel for the appellants would
vehemently contend that the learned Writ Court ought to have taken note of
the fact that the appellants had approached the Writ Court on the ground
that initiation of action on the impugned consignments is barred by law and
cannot be issued on conjectures and surmises and that the responsibility to
prove mis-statement and mis-declaration or fraud, as alleged, is on the
Department and there is no shred of evidence or a credible reason to prove
the allegation. By referring to various decisions, it is contended that the
initial burden is on the Department to prove that the situation as envisaged
in the proviso to Section 28 exists and when there are no ingredients for
proving suppression or mis-declaration, the appellant was justified in
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W.A.No.640 of 2021
approaching the Writ Court. The learned counsel also drawn our attention to
the Interim Rules of Origin for Preferential Tariff Concessions for Trade
between India and Thailand and in particular Rule 14 and Rule 20. The
learned counsel also referred to a Sample Certificate of Origin and the stand
taken by the appellant in their reply dated 29.07.2015 to the Show Cause
Notice dated 06.06.2015.
4. Mr.A.P.Srinivas, learned Senior Standing Counsel appearing for
the respondent seeks to sustain the order passed in the writ petition, by
contending that the appellants have an efficient alternate remedy by way of
an appeal before the Commissioner of Appeals, which has been clearly
mentioned in the order passed by the Joint Commissioner and there is no
justification for the appellants to bypass the appeal remedy.
5. First, we take up for consideration the observations made by the
learned Writ Court for dismissing the writ petition. The learned Writ Court,
by placing reliance on the decision of the Hon'ble Supreme Court in the case
of Assistant Collector of Central Excise Vs. Dunlop India limited reported
in (1985) 1 SCC 260, opined that the discretionary powers under the writ
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W.A.No.640 of 2021
jurisdiction of this Court cannot be exercised in the case and there is no
acceptable explanation from the appellants for not having resorted to
alternate remedy provided under the statute.
6. To be noted, that exercise of discretion by a Writ Court, despite
availability of an alternate remedy, is a self imposed restriction. There have
been many exceptions to the said rule, where the Courts have exercised
jurisdiction. In a recent decision of the Hon'ble Supreme Court in the case
of Maharashtra Chess Association Vs. Union of India and others reported
in (2020) 13 SCC 285, one of the issue was whether a private agreement
can oust the writ jurisdiction of a High Court. While dealing with the said
issue, the Court referred to the earlier decisions and observed as follows:
"13. While the powers the High Court may
exercise under its writ jurisdiction are not subject to
strict legal principles, two clear principles emerge with
respect to when a High Court’s writ jurisdiction may be
engaged. First, the decision of the High Court to
entertain or not entertain a particular action under its
writ jurisdiction is fundamentally discretionary.
Secondly, limitations placed on the court’s decision to
exercise or refuse to exercise its writ jurisdiction are
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W.A.No.640 of 2021
self-imposed. It is a well settled principle that the writ
jurisdiction of a High Court cannot be completely
excluded by statute. If a High Court is tasked with
being the final recourse to upholding the rule of law
within its territorial jurisdiction, it must necessarily
have the power to examine any case before it and make
a determination of whether or not its writ jurisdiction is
engaged. Judicial review under Article 226 is an
intrinsic feature of the basic structure of the
Constitution.
14. These principles are set out in the decisions of
this Court in numerous cases and we need only mention
a few to demonstrate the consistent manner in which
they have been re-iterated. In State of Uttar Pradesh v
Indian Hume Pipe Co. Limited,10 this Court observed
that the High Court’s decision to exercise its writ
jurisdiction is essentially discretionary:
“4…It is always a matter of discretion with the
Court and if the discretion has been exercised by
the High Court not unreasonably, or perversely, it
is the settled practice of this Court not to interfere
with the exercise of discretion by the High Court.”
15. The principle was dwelt upon even prior to
this. In Sangram Singh v Election Tribunal, Kotah,
the court highlighted the discretionary nature of the
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W.A.No.640 of 2021
High Court’s writ jurisdiction. The court added that
courts had themselves imposed certain constraints on
the exercise of their writ jurisdiction to ensure that the
jurisdiction did not become an appellate mechanism for
all disputes within a High Court’s territorial
jurisdiction. The court stated:
“14… The High Courts do not, and should not,
act as courts of appeal under Article 226. Their
powers are purely discretionary and though no
limits can be placed upon that discretion it must
be exercised along recognized lines and not
arbitrarily; and one of the limitations imposed by
the courts on themselves is that they will not
exercise jurisdiction in this class of case unless
substantial injustice has ensued, or is likely to
ensue. They will not allow themselves to be turned
into courts of appeal or revision to set right mere
errors of law which do not occasion injustice in a
broad and general sense, for, though no
legislature can impose limitations on these
constitutional powers it is a sound exercise of
discretion to bear in mind the policy of the
legislature to have disputes about these special
rights decided as speedily as may be.”
(Emphasis supplied)
The intention behind this self-imposed rule is clear. If
High Courts were to exercise their writ jurisdiction so
widely as to regularly override statutory appellate
procedures, they would themselves become inundated
with a vast number of cases to the detriment of the
litigants in those cases. This would also defeat the
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W.A.No.640 of 2021
legislature’s intention in enacting statutory appeal
mechanisms to ensure the speedy disposal of cases.
16. The observation extracted above raises an
important consideration with respect to the present
case. If, by the self-imposed rule, the writ jurisdiction
of High Courts is circumscribed by the existence of a
suitable alternate remedy, whether constitutional,
statutory, or contractual, then a High Court should not
exercise its writ jurisdiction where such an alternate
remedy exists. Thus, before we address the question of
whether or not Clause 21 of the Constitution and Bye
Laws compel the Bombay High Court to abstain from
entertaining the Appellant’s writ petition, we must first
address ourselves to whether, even in the absence of
Clause 21, the existence of an alternate remedy would
create a bar on the Bombay High Court entertaining
the Appellant’s writ petition.
............
20. The principle that the writ jurisdiction of a
High Court can be exercised where no adequate
alternative remedies exist can be traced even further
back to the decision of the Constitution Bench of this
Court in State of Uttar Pradesh v Mohammad Nooh,
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W.A.No.640 of 2021
where Justice Vivian Bose observed:
“10.In the next place it must be borne in mind that
there is no rule, with regard to certiorari as there
is with mandamus, that it will lie only where there
is no other equally effective remedy. It is well
established that, provided the requisite grounds
exist, certiorari will lie although a right of appeal
has been conferred by statute. (Halsbury's Laws of
England, 3rd Ed., Vol. 11, p. 130 and the cases
cited there). The fact that the aggrieved party has
another and adequate remedy may be taken into
consideration by the superior court in arriving at
a conclusion as to whether it should, in exercise of
its discretion, issue a writ of certiorari to quash
the proceedings and decisions of inferior courts
subordinate to it and ordinarily the superior court
will decline to interfere until the aggrieved party
has exhausted his other statutory remedies, if any.
But this rule requiring the exhaustion of statutory
remedies before the writ will be granted is a rule
of policy, convenience and discretion rather than
a rule of law and instances are numerous where a
writ of certiorari has been issued in spite of the
fact that the aggrieved party had other adequate
legal remedies.”
21. The mere existence of alternate forums where
the aggrieved party may secure relief does not create a
legal bar on a High Court to exercise its writ
jurisdiction. It is a factor to be taken into consideration
by the High Court amongst several factors."
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W.A.No.640 of 2021
7. The above decision of the Hon'ble Supreme Court points out
the legal position and it is not in all cases where there is an alternate remedy,
it can automatically be held that a writ is not maintainable. Having steered
clear of the legal position, we hold that a writ could have been maintained
by the appellant before this Court on the ground canvassed before it.
8. After elaborately hearing the learned counsel for the appellants
and the learned Senior Standing Counsel appearing for the respondent, we
are of the view that the issues raised in the writ petition are not purely
questions of law, but mixed questions of fact, which would require a process
of adjudication. Such matters cannot be decided by a Writ Court based on
affidavits. Therefore, we do agree with the ultimate conclusion of the
learned Writ Court that the appellant should avail the alternate remedy
available under the Act.
9. For the reasons, which we have assigned in the preceding
paragraph, the Writ Appeal stands dismissed and the appellants are granted
60 days time from the date of receipt of a copy of this judgment to file an
appeal before the Commissioner of Customs (Appeals) and if the same is
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W.A.No.640 of 2021
filed, the Commissioner of Customs (Appeals) shall entertain the appeal,
without reference to the limitation as the writ petition was filed before this
Court in the year 2016, which is well within the period of limitation, had the
appellants filed appeals before the Commissioner of Customs (Appeals) at
the relevant point of time.
10. Since the learned counsel for the appellants submitted that the
certified copy of the impugned order was filed in the writ petition, the
Registry is directed to return the impugned original order filed in the writ
petition, after retaining a photostat copy. No costs. Consequently, connected
miscellaneous petition is closed.
(T.S.S.,J.) (R.N.M.,J.)
25.02.2021
Index: Yes/No
Internet:Yes/No
Speaking Judgment/Non speaking Judgment
hvk
To
The Joint Commissioner of Customs (Air Cargo),
Office of the Principal Commissioner of Customs,
Chennai VII Commissionerate,
New Custom House, Meenambakkam,
Chennai - 600 027.
https://www.mhc.tn.gov.in/judis/
W.A.No.640 of 2021
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
hvk
W.A.No.640 of 2021
and
C.M.P.No.2840 of 2021
25.02.2021
https://www.mhc.tn.gov.in/judis/
