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2017 (11) TMI 52 - HC - CustomsConfiscation of imported vehicle - right hand drive Hummer H2 SUV - allegation in the show-cause notice was that the vehicle was converted from left hand drive to right hand drive and had changed hands before being imported into India and as such was not eligible for concessional duty - also, the cost of conversion from left hand drive to right hand drive had not been included in the assessable value of the vehicle and as such duty was short paid at the time of import - main grievance of the petitioner appears to be that he has lost the opportunity of approaching the Settlement Commission. Held that: - where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of - In the case of Whirlpool Corporation-vs.-Registrar of Trade Marks, [1998 (10) TMI 510 - SUPREME COURT], the Apex Court observed that under Art. 226 of the Constitution of India, the High Court having regard to the facts of a case, has a discretion to entertain or not to entertain a writ petition. The High Court has imposed upon itself certain restrictions one of which is that if an efficacious alternative remedy is available, the High Court would not normally exercise its writ jurisdiction. Principles of Natural Justice - Held that: - The customs law is a complete code by itself. The Customs Act and the Rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code. The order passed by the respondent in this case is an appealable order. Sec. 128 provides for a statutory appeal - Mr. Khaitan argued that this statutory appeal is not an effective remedy since under Sec. 128A(3), the Commissioner (Appeals) cannot remand the matter back to the Adjudicating Officer. Even assuming the Commissioner does not have that power, in my opinion, the same does not make the statutory appeal a non-efficacious remedy. The petitioner had sufficient opportunity of contesting the adjudication proceeding on merits but it chose not to do so. The respondent granted two adjournments to the petitioner - By the notice dated 7 February, 2013 all the noticees including the petitioner were informed that no further adjournments would be allowed and if one failed to appear, the case would be decided as per the facts and evidence on record. I cannot hold that there was breach of the principles of natural justice. If the petitioner takes recourse to the alternative remedy of statutory appeal, he would not be prejudiced in any manner. It is a comprehensive remedy and he can contest the order on merits and I propose to grant him that liberty. If the petitioner has lost the opportunity of contesting the adjudication proceeding on merits in the first round, it is only himself that he can blame. Approach to Settlement commission which was rejected - Held that: - If the petitioner was serious about approaching the Settlement Commission, he ought to have been more diligent and he had sufficient time for filing a settlement application before the Settlement Commission. It appears that he took a chance of getting a favourable verdict before the respondent and now that the order has gone against him, he prays for an opportunity to approach the Settlement Commission. Application dismissed - However, if the petitioner prefers an appeal from the impugned order within four weeks from date, the petitioner shall be entitled to the benefit of Sec. 14 of the Limitation Act and the Appellate Authority shall decide the appeal on merits without going into the question of limitation.
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