TMI Blog2010 (3) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 with 2379/2005 - - - Dated:- 30-3-2010 - Mr.P.S.Jetly, for the Petitioner. Mr.V.M.Advani, for the Respondent No.1. Mr.A.M.Sachwani, for the Respondent No.2. CORAM: V.C.DAGA K.K. TATED, J J. JUDGMENT (Per K.K.Tated, J): 1. Heard the learned counsel for the respective parties. 2. By this petition under Articles 226 and 227 of the Constitution of India r/w Section 130 of the Customs Act, 1962, the Petitioner/Revenue challenges the orders passed by the Customs, Excise Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (in short CEGAT) dated 17.01.1998 passed in Appeals Nos. 178/1997 and 249/1997 and dated 15.05.1998 passed in reference application. THE FACTS 3. The Respondent No.1 is NRI and the Respondent No.2 2 is the Customs Officer. It is the case of the Petitioner/Revenue that the Respondent No.1 was involved in smuggling foreign currency of US Dollars 40,000 equivalent to Indian Rs.13,30,000/approximately, sometime on 12.10.1995 in contravention of Sections 111, 113, 114, 118 and other Sections of the Customs Act, 1962 read with Section 13(2) of the Foreign Exchange Regulation Act, 1973. The Respondent No.2 is an officer of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal to rely on this part of the additional evidence without observing proper procedure in terms of Rule 23 of the CEGAT procedure rule and in coming to the decision of exonerating both the accused in its impugned order and whether the findings based on this fact would be hit by rule 23 of the CEGAT Procedure Rules? (3) Whether on the basis of the facts and circumstances highlighted in the statement of facts in this application it was proper and legal to come to a logical conclusion that the Department has not adduced evidence sufficient to raise a presumption against the accused and in favour of the Department's findings in the adjudicating order? 8. The CEGAT vide its order dated 15.05.1998 dismissed the Reference Application holding that no question of law arises for referring it to the High Court. 9. Thereafter, the Respondent No.1 filed several applications with the Petitioner/Revenue for return of the confiscated currency as well as predeposit which he had made at the time of preferring the appeal. Inspite of several applications, the Petitioner did not take any action. The Respondent No.1, therefore, filed Misc. Application dated 12.10.1999 before the CEGAT under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner ought to have filed an application under Section 130(3) of the Customs Act, 1962 within six months from the date of receipt of the order dated 15.01.1998. This is specific alternate remedy provided under the Act which till today the Petitioner has not availed. Therefore, the present Writ Petition is not maintainable on this ground alone and the same is liable to be dismissed. In support of his preliminary objection, he referred to 6 the Section 130 of the Customs Act, 1962, during the relevant period, which reads thus: "130. Statement of case to High Court. (1) The Commissioner 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 rule made in behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal refer to the High Court any question of law arising out of such order and, subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that the present Writ Petition is pending for last ten years and therefore, at this stage, the Court should not dismiss the same on technical ground of alternate remedy. For this proposition, Mr. Jetly pressed into service the judgment in the matter of Dhampur Sugar Mills Ltd. Vs. Union of India reported in 2000(122) ELT 333 (SC) wherein the Apex Court held that when the petition is pending for seven years it is little harsh to relegate the Petitioner therein to the alternate remedy. Paragraph No.3 of the said judgment reads thus:" 3. The petition had been pending for seven years and it does seem a little harsh to relegate the appellant after seven years to the alternate remedy. The learned Additional Solicitor General fairly states, in the circumstances, that the order under challenge may be set aside and the writ petition 8 (Civil Misc. Writ Petition No.747 of 1962) may be restored to the file of the High Court to be heard and disposed of on merits. This is appropriate and it should be done expeditiously." 14. Mr. Jetly, further submitted that in alternative the Petitioner already preferred Civil Application No.2379/2005 for allowing the Petitioner to treat or conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Petitioner could not be permitted to challenge the order of Tribunal after lapse of five years by filing the Writ Petition under Article 226 of the Constitution of India. 17. Mr.Advani further submitted that in any case the present Writ Petition is not maintainable under Articles 226 and 227 of the Constitution of India because the alternate remedy by way of Reference Application provided under the Act was not availed by the Petitioner. Not only that but after the CEGAT passed the order dated 04.01.2000 under Rule 41 of the Customs, Excise Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 for compliance of the order dated 17.01.1998, the Petitioner filed the Writ Petition on 13.01.2000 after a period of two years from the 10 day the order dated 15.05.1998 was passed, as such, in his submission, this petition is not bonafide and not a fit case to invoke writ jurisdiction of this Court. CONSIDERATION OF OBJECTION 18. After hearing both the sides at length, we are of the opinion that the present Writ Petition under Articles 226 and 227 of the Constitution of India challenging the orders dated 17.01.1998 and 15.05.1998 is not maintainable in view of the alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reported in (2007) 2 SCC 112, held that as a matter of course the High Court should not entertain the writ petition when alternate remedy is available under the statute. The judgment reads thus: (Head Note-E) "E. Constitution of India-Art. 26-Alternative remedy-Available under statute-High Court should not ordinarily entertain the writ petition except where a very strong case is made out for departure from the general rule-Dispute relating to enforcement of workmen's right and employer's obligation under Industrial Disputes Act, 1947-Even though specific remedy provided under the Act, workmen instead of availing the same, directly approached High Court under Art.226No exceptional circumstances shown for taking such a course Held: High Court not justified in entertaining the writ petition-Writ Petitioners, who have not invoked jurisdiction of Labour Court/ Industrial Tribunal under the Act, not entitled to any relief in the writ petition." 22. In the case of K. K. Shrivstava v. Bhupendra Kumar Jain, 1977 U.J. (SC) 344, three Judge Bench of the Apex Court held as under:" 4. It is well settled law that while Art.226 of the Constitution confers a wide power on the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner's Civil Application No.2379/2005 praying to allow them to treat/convert the writ petition into a Reference Application under Section 130(3) of the Customs Act, 1962 cannot be allowed since it is barred by limitation. In the present case, the CEGAT passed an order on 15.05.1998 refusing to refer the questions of law to this Court. The said order was received by the Petitioner on 26.05.1998, thereafter, a letter dated 04.06.1988 was addressed to the Deputy Secretary Legal Adviser, 14 Ministry of Law to give legal advice. One Mr. R. Raghupati, Additional Legal Adviser, Ministry of Law, Government of India gave advice which was received by the Petitioner on 14.10.1998. Thereafter, the Petitioner appointed counsel on 15.12.1998 for filing the present Writ Petition. The counsel appointed by the Petitioner drafted the writ petition on 25.01.1999 and the same was forwarded to the Department on 23.04.1999 for correction. A fair copy of the petition settled by the counsel was collected by the Department for fresh typing on 25.10.1999 and thereafter, the present Writ Petition came to be filed on 13.01.2000. However, as per the provisions of Section 130 of the Customs Act, 1962, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, since the parties have also addressed us on merits of the matter, we propose to record our finding even on merits. SUBMISSIONS ON MERIT 31. Mr.Jetly while taking us on merits of the matter urged that the Petitioner/Revenue had received information on 12.10.1995 that the Respondent No.1 will be smuggling near about 30,000 to 40,000 US dollars to Dubai. Pursuant to the said information, the officers of Petitioner took search of the Respondent No.1's handbag in presence of the two independent witnesses, 16 which resulted in recovery of one white coloured envelope addressed to Mr. Zohar T. Dala and one brown coloured envelope. Upon opening the said two envelopes, the same were found to contain 40,000 US dollars of 100 denomination each. This foreign currency of 40,000 US dollars equivalent to Indian Rs.13,30,000/approximately was recovered and the same was seized under the Panchanama under the reasonable belief that the said currency notes were attempted to be smuggled out of India and hence, liable to be confiscated. 32. Mr. Jetly urged that the statement of the Respondent No.1 was recorded before the Superintendent of Customs, Mumbai under Section 108 of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matic channel to confirm this fact with the said firm, but it did not yield any result and the said firm refused to reply to the queries raised by the Indian authorities. Mr. Jetly further submitted that it is mandatory for any passenger to produce the documentary evidence of its source of procurement when the amount exceeds 250 US dollars. In the present case, the Respondent No.1 failed to produce any cogent evidence to show how he procured 40,000 US dollars. 35. Mr. Jetly, learned counsel for the Petitioner/Revenue further submitted that the CEGAT failed to consider the various points logically dealt with in the order-in-original which were supported by the evidence on record. He further submitted that the 18 CEGAT while allowing the appeals of the Respondents Nos.1 and 2 failed and neglected to consider that on 12.10.1995 the Customs Officers of Preventive Commissionerate, Mumbai pursuant to the specific prior information intercepted the Respondent No.1 after he cleared the immigration and customs for the purpose of boarding the flight to Dubai and the officers seized foreign currency of US Dollars 40,000 from his possession. 36. Mr. Jetly further submitted that one officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Court itself shows that the Petitioner falsely implicated the Respondent No.1 in the present case. The said order has achieved finality. 40. Mr. Advani further submitted that the officers of Petitioner brought on record bogus documents to falsely implicate the Respondent in the present case. According to him, on the basis of the endorsement on the Respondent No.1's passport, he cleared immigration on 11.10.1995 for boarding Flight No.EK501. Similarly, the Respondent No.1's ticket also shows Flight No.EK501 and departure time 0430 hours. However, the Petitioner prepared the Panchanama after 09:30 AM on 12.10.1995. This shows that the Petitioner prepared the false Panchanama immediately. Mr. Advani further submitted that the officers of Petitioner placed on record the boarding pass of Flight No.EK505 with departure time 09:45 AM. Not only that but no where the name of passenger i.e. Respondent No.1 was shown in the said boarding pass of Flight No.EK505. This itself shows the manner in which the officers of Petitioner intentionally created the false case against the Respondent No.1. 41. Mr. Advani, learned counsel for the Respondent No.1 further submitted that the disciplinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal because the order-in-original did not state or suggest or imply that the retraction statement of the Respondent No.1 would have effect of nullifying the admissions made in that behalf. On the basis of these submissions, Mr. Advani submitted that the Petitioner cannot challenge the disputed questions of facts under Article 226 of the Constitution of India and thus, the petition is liable to be dismissed with costs. 44. Mr. Sachwani, learned counsel for the Respondent No.2 adopted the submissions made by the learned counsel for the Respondent No.1 and also relied on the orders passed in the criminal proceedings. FINDINGS ON MERITS 45. We have heard both the counsel at length and perused the documents on record. Firstly, petition is liable to be dismissed as it involves disputed questions of facts. But, even on the material available on record without raising any dispute with respect to that, the petition cannot succeed on merit for the reasons recorded hereinafter. 46. It is an admitted fact that the Respondent No.1 when arrived in India declared 40,000 US dollars by executing the currency declaration form. Though the Petitioner disputed genuineness of the said form, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the Panchanama which was prepared by the officers of Petitioner on 12.10.1995 in which several incorrect statements were recorded such as flight number, timing of flight, confession of Respondent No.1 etc.. 48. The Respondent No.1 placed on record a photocopy of the ticket which shows the Flight No.EK501, departure time as 0430 and also shows OK status. If the ticket is of Flight No.EK501, how the Petitioner brought on record the boarding pass of Flight No.EK505 that too also without name of passenger. This itself shows that the Petitioner manipulated the boarding pass just to justify that they prepared the Panchanama immediately before 15 minutes of the departure time of Flight No.EK505. On the basis of these admitted facts on record, it is not possible to hold that the Respondent No.1 has committed any offence in respect of smuggling of the foreign currency of 40,000 US dollars. 49. In view of the above facts and circumstances, there is no substance in the present Writ Petition and the same deserves to be dismissed with costs. Accordingly, we dismiss the present Writ Petition with costs. The Petitioner/Revenue is directed to pay a sum of Rs.15,000/( Rupees Fifteen Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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