Madras High Court
M/S.Tubeknit Fashions Limited vs The Deputy Commissioner Of ... on 9 June, 2021
1 W.P.No.12502 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.06.2021
C O RAM
THE HON'BLE Mr.JUSTICE S.M.SUBRAMANIAM
W.P.No.12502 of 2021
and WMP.No.13274 of 2021
M/s.Tubeknit Fashions Limited,
No.137, Kanchivaram,
Vijayapuram Post,
Nallur, Tirupur 641 606.
Rep.by its Managing Director ... Petitioner
Vs
The Deputy Commissioner of Customs (BRC – DBK)
Chennai – IV, Customs House, 60 Rajaji Salai,
Chennai – 600 001. ... Respondent
Writ Petition filed under Article 226 of the Constitution of India
pleased to issue a writ of certiorari to call for the records of the
respondent in order-in-original No.82357/2021 dated 27.03.2021
(DIN:20210373MZ00000FF55) and quash the same.
For Petitioner ... Mrs.D.Naveena
For Respondents ... Mr.Rajnish Pathiyil
Senior Panel Counsel
ORDER
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The writ on hand is filed challenging the order in original dated
27.03.2021 passed by the sole respondent.
2. The impugned order demanding Duty Drawback for non
realisation of export proceeds is questioned mainly on the ground that the
respondent has violated the principles of natural justice. The learned
counsel for the petitioner made a submission that no personal hearing was
provided to the petitioner to put forth their defence and therefore the
impugned order is liable to be set aside. It is further contended that the
reply letter dated 31.03.2017, the Chartered Accountant's Certificate
submitted in terms of the Board Circular No.5/2009 dated 07.02.2009 and
the letter dated 13.03.2021 were not considered by the respondent and for
all these reasons the impugned order is pervase. At the out set it is
contended that sufficient opportunity of personal hearing has not been
extended to the petitioner and therefore the respondent has committed an
act of violation of principles of natural justice.
3. The learned Senior Panel Counsel appearing on behalf of the
respondent disputed the said contention by stating that opportunities were
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afforded to the petitioner. The Commissioner of Customs, Chennai - IV
issued Public Notice No.02/2018 dated 08.01.2018 wherein common
personal hearing was notified to all exporters whose BRC was not
realised for the period 2004-2014. The said Public Notice was uploaded
on the website of Chennai Customs viz., chennaicustoms.gov.in and also
forwarded to FIEO and Custom Broker Associations for circulation
among its members. However, the exporter has not responded, in spite of
several opportunities given to appear in person or through his authorised
representative to produce evidence for the sale proceeds in respect of the
above mentioned shipping bills. Further personal hearing were issued to
the exporter vide letter dated 01.03.2021 in F.No.S.Misc.2/145/2016-
DBK (BRC) giving 08.03.2021, 09.03.2021, 10.03.2021 as dates for
scheduled personal hearing. However, the exporter has neither responded
to the said personal hearing letter dated 01.03.2021 nor appeared for
above mentioned hearing dates. It is contended that several opportunities
were given to the petitioner to defend their case in the manner prescribed.
Therefore the petitioner cannot now approach this Court with incorrect
facts regarding the opportunities provided to the petitioner by the
respondent to defend their case.
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4. This Court is of the considered opinion that even in such
circumstances the grievances if at all exists the same can be exhausted by
filing an appeal before the appellate authority under the provisions of the
Customs Act. The introductory paragraph of the impugned order states
that an appeal against the order lies with the Commissioner of Customs
th
(Appeals), Custom House, 5 floor, Chennai 600 001, under Section
128(1) of the Customs Act, 1962, within 60 days of communication of
this order. Thus the petitioner is very much aware of the appellate remedy
contemplated and such an appellate remedy is also informed to the
petitioner even through the impugned order. However without exhausting
the appellate remedy the present writ petition is filed by merely stating
that the respondent has violated the principles of natural justice. Such
legal grounds can be adjudicated by the appellate authority namely the
Commissioner of Customs (Appeals) and therefore entertaining the writ
petition at this juncture would deprive the litigant from availing the
benefit of appellate remedy which is undoubtedly valuable and important.
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5. This Court has elaborately considered the issues with reference
to preferring a statutory appeal before approaching the High Court under
Article 226 of the Constitution of India in judgment dated 15.04.2021 in
W.P.No.3144 of 2016 and the relevant paragraphs are extracted
hereunder:
“7.In order to avoid the Pre-Deposit, which is
contemplated under the Statute, the practice of filing writ
petitions is prevailing in the High Court and the High Court
cannot encourage such practice and the appellate remedy
contemplated under the Act is to be exhausted in all
circumstances and only under extraordinary circumstances,
in order to mitigate injustice, the High Court can intervene
and not otherwise. Such power of dispensing with the
appeal remedy is to be exercised sparingly and not in a
routine manner. The learned Senior Standing Counsels
reiterated that, in respect of the writ petitions on hand, the
original assessment order has been passed either by the
Joint Commissioner or by the Commissioner of Customs.
Against such original orders passed by the original
authorities under the provisions of the Customs Act, an
appeal is contemplated under Sections 128 and 129 of the
Customs Act, respectively. Without exhausting the appellate
remedy, the writ petitioners have filed these writ petitions,
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and therefore, the writ petitions are liable to be dismissed.
8.With reference to the appellate remedy, the Hon'ble
Division Bench of this Court in W.A.No.640 of 2021
[M/s.Fourceess Diamond Pvt. Ltd. and another v. The
Joint Commissioner of Customs (Air Cargo),
Meenambakkam, Chennai] delivered a judgment on
25.02.2021 and the relevant paragraphs are extracted
hereunder :
“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 filed,
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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.”
11.This Court is of the considered opinion that all
such grounds raised on merits are to be adjudicated with
reference to the documents and evidences to be produced
and the scope of the writ petition under Article 226 of the
Constitution of India cannot be expanded so as to exercise
the powers of the appellate authority in the matter of
examination or scrutiny of original documents and evidences
produced by the respective parties. The very purpose of the
statutory appeal is to scrutinize the orders passed by the
original authorities, and therefore, the legislative intention
in this regard is to be scrupulously followed in the mater of
adjudication of merits with reference to the documents and
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evidences.
12.In common parlance, Statutes contain appeal
provisions. In some of the Statutes, there are two-tier appeal
provisions in order to ensure that the facts, grounds,
evidences are appreciated and the grievances are redressed
in the manner known to law. Such appeal provisions are
provided with the legislative intention to provide remedy to
the aggrieved persons. The High Court, in normal
circumstances, would not interfere nor dispense with the
appellate remedy.
13.The High Court cannot adjudicate the facts and
merits with reference to documents and evidences. Trial is
not entertainable under Article 226 of the Constitution of
India. All such procedural aspects are to be followed by
complete adjudication/trial by the original authorities as
well as by the appellate authorities under the provisions of
the Statute and the powers under Article 226 of the
Constitution of India is limited to find out whether the
processes contemplated under the Statutes and the
procedural aspects are followed by the competent authorities
as well as the appellate authorities or not. The High Court,
under Article 226 of the Constitution of India, is not
expected to usurp the powers of the appellate authorities by
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adjudicating the merits of the matter on certain documents
and evidences. In the event of adjudication of merits under
Article 226 of the Constitution of India in the absence of
complete trial with reference to the documents and
evidences, there is a possibility of miscarriage of justice, and
therefore, the High Court is expected to be cautious, while
entering into the venture of adjudication of certain merits
with reference to the original documents and evidences
produced by the respective parties to the lis. This being the
legislative intention, High Court is expected to trust the
institutional authorities as well as the hierarchy of
institutions contemplated under the Statutes. Institutional
respects are of paramount importance for providing
complete justice to the parties and the various stages of
adjudication are important for the purpose of correcting
omissions, commissions, errors in appreciation of evidence,
etc. Powers of the High Court under Article 226 of the
Constitution of India cannot be extended nor widened so as
to allow lay hands on the facts and circumstances by
conducting the trial, nor certain facts and circumstances
with reference to documents and evidences can be assumed
or presumed or inference can be drawn, which is not
preferable.
15.As far as the judgment of the Hon'ble Supreme
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Court of India in the case of M/s.Canon India Private
Limited (supra) is concerned, as rightly pointed out by the
learned Senior Standing Counsels appearing on behalf of
the respondents that the matter went to the Hon'ble Apex
Court by way of regular appeal and the Hon'ble Supreme
Court of India, while adjudicating the final orders passed by
the Appellate Tribunal, formed an opinion that the issuance
of show cause notice itself was by an improper authority.
Thus, by citing the said finding, the appellate remedy
otherwise provided under the Statute cannot be dispensed
with, and in the event of accepting the said contention, in all
such cases, every litigant will approach the High Court by
way of writ petition bypassing the appellate remedy, which is
not desirable and cannot be accepted. As observed earlier,
Institutional respect is of paramount importance. Even the
point of jurisdiction, limitation, error apparent on the face of
the record, are on merits and all are to be adjudicated before
the appellate authority and the appellate authority, more
specifically, the Appellate Tribunal or the Commissioner
(Appeals), as the case may be, is empowered to adjudicate
all such legal grounds raised by the respective parties and
make a finding on merits. Thus, usurping the powers of the
appellate authorities by the High Court by invoking its
powers under Article 226 of the Constitution of India is
certainly unwarranted. The parties must be provided an
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opportunity to approach the appropriate authorities for
redressal of their grievances in the manner known to law. In
the event of entertaining all such writ petitions, the High
Court will not only be over-burdened, but usurping the
powers of the appellate authority is certainly not desirable.
18.Large number of writ petitions are filed without
exhausting the statutory appeal remedies and High Court is
also entertaining such writ petitions in a routine manner.
Keeping such writ petitions pending for long time would
cause prejudice to the interest of the assessee also. Thus,
such statutory provisions regarding the appeal are to be
decided at the first instance, enabling the litigants to avail
the remedy by following the procedures as contemplated
under law. Such writ petitions are filed may be on the
ground of jurisdiction or otherwise. However, the Courts are
expected to ensure that all such legal grounds available to
the parties are adjudicated before the proper Forum and
only after exhausting the statutory remedies, writ petitions
are to be entertained. In the absence of exhausting such
remedies, High Court is loosing the benefit of deciding the
matter on merits as the High Court cannot conduct a trial or
examine the original records in the writ proceedings under
Article 226 of the Constitution of India. Thus, the Courts
shall not provide an unnecessary opportunity to the
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assessee to escape from the liability merely on the ground on
jurisdictional error, which is rectifiable.
19.This being the facts and circumstances established,
this Court has no hesitation in arriving at a conclusion that
the petitioners are bound to exhaust the appellate remedy,
either under Section 128 or Section 129 of the Customs Act,
respectively. Thus, the petitioners are at liberty to approach
the appellate authority and file an appeal by following the
procedures contemplated and by complying with the
conditions to prefer the appeal, within a period of 60 days
from the date of receipt of a copy of this order, and in the
event of filing of appeal(s) by the writ petitioners within a
period of 60 days, all such appeals are directed to be
entertained without reference to the period of limitation, and
the matters are to be adjudicated on merits and in
accordance with law and by affording opportunity to all the
parties, and the appeals are to be disposed of as
expeditiously as possible.”
6. With these observations, the writ petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is also closed.
09.06.2021
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dpq
Index : Yes/No
Speaking /Non-speaking order
To
The Deputy Commissioner of Customs (BRC – DBK)
Chennai – IV, Customs House, 60 Rajaji Salai,
Chennai – 600 001.
S.M.SUBRAMANIAM, J.
dpq
To
The Deputy Commissioner of Customs (BRC – DBK)
Chennai – IV, Customs House, 60 Rajaji Salai,
Chennai – 600 001.
W.P.No.12502 of 2021
and WMP.No.13274 of 2021
09.06.2021
https://www.mhc.tn.gov.in/judis/
