2024 (5) TMI 1587 - HC - Customs

Maintainability of the writ petition - petitioners have a statutory remedy against Exts.P7 and P8 orders before the Tribunal - basis of levy of penalty on pure surmises and conjectures or not - HELD THAT - Exts.P7 and P8 orders must be set aside and the appeals leading up to those orders must be restored to the file of the Commissioner (Appeals) for fresh consideration. No opinion expressed on the merits of the matter. No observation in this judgment shall be treated as a finding by this Court on any issue that may be raised before the Appellate Authority by the petitioners or by the Department. The observations are made only for the purpose of deciding this Writ Petition. It is open to the first respondent to take a decision on the appeals in accordance with the law and untrammelled by any observation in this judgment.

Summary

The core legal questions considered by the Court in this matter include:

1. Whether the adjudicating and appellate authorities had jurisdiction to impose penalties and confiscation orders in respect of goods covered by 71 shipping bills that had already been exported prior to the interception of the consignment in question.

2. Whether the appellate authority erred in dismissing the statutory appeals filed by the petitioners on the ground of limitation, particularly considering the pendency of a writ petition before the High Court.

3. Whether the imposition of enhanced penalties by the appellate authority was justified and supported by evidence, or based on surmises and retracted statements.

4. Whether the writ petition challenging the appellate orders is maintainable in view of the availability of alternative statutory remedies before the Customs, Excise and Service Tax Appellate Tribunal.

5. The proper application of limitation principles and exclusion of time during pendency of writ proceedings for the purpose of filing statutory appeals.

Issue-wise Detailed Analysis:

1. Jurisdiction to Impose Penalties and Confiscation in Respect of Exported Goods Covered by 71 Shipping Bills

The relevant legal framework includes the Customs Act and the policy guidelines under the Handbook of Procedures of Foreign Trade, along with notifications and circulars regulating import and export of gold and jewellery. The adjudicating authority had imposed penalties and confiscation orders not only for the intercepted consignment but also for goods exported earlier under 71 shipping bills, alleging diversion of gold to the domestic market.

The Court noted that the appellate authority's order (Ext.P8) did not address the jurisdictional issue raised by the petitioners regarding imposition of penalties for goods that had already been exported and were no longer available for confiscation. The Court relied extensively on the Division Bench judgment of the Andhra Pradesh High Court in Syed Irfan Mohammed v. Union of India, which held that mere reliance on oral or retracted statements and absence of primary evidence (such as the actual goods) cannot justify presuming wrongdoing in past consignments that have disappeared into the market.

The Andhra Pradesh High Court's reasoning emphasized that once goods are cleared under Section 47 of the Customs Act after proper examination and payment of duty, there is a presumption of legality. Allegations of concealment or misdeclaration in past consignments cannot be sustained solely on conjecture or statements without cogent evidence. The Court held that invoking proceedings under Section 28(4) for such past consignments is impermissible where the goods have been cleared and are not available for examination or confiscation.

Applying this principle, the Court found that the appellate authority failed to consider the jurisdictional objection and proceeded to enhance penalties without addressing whether it had the authority to do so for the 71 shipping bills. This omission was held to be a jurisdictional error warranting setting aside of the appellate orders and remand for fresh consideration.

2. Dismissal of Petitioners' Appeals on Grounds of Limitation

The petitioners' appeals against the adjudicating authority's orders (Exts.P3 and P4) were dismissed by the appellate authority as barred by limitation. The petitioners contended that the appeals were filed with a delay of only two days beyond the condonable period, and that the period during which the writ petition (W.P.(C) No.19102/2018) was pending before the High Court should be excluded from the limitation calculation.

The Court analyzed relevant precedents from various High Courts holding that the pendency of writ petitions seeking implementation of orders can justify exclusion of the writ period for limitation purposes, especially where the writ petition was filed bona fide to secure relief and was pending at the time the appeal was due. The Court observed that since the petitioners paid the penalties and sought release of goods through the writ petition, the limitation period for filing appeals was effectively suspended during the writ's pendency.

Accordingly, the Court held that the appellate authority erred in dismissing the appeals on limitation grounds without condoning the short delay and without excluding the writ period. This justified setting aside the dismissal orders and restoration of the appeals for fresh adjudication.

3. Validity of Enhanced Penalties Based on Evidence

The petitioners challenged the imposition of enhanced penalties on the basis that the appellate authority relied on retracted statements and unconnected transactions unrelated to the 71 shipping bills. They contended that the penalties were imposed without proper consideration of jurisdiction and evidence.

The respondents contended that the appellate authority relied on cogent materials and the magnitude of evasion justified enhanced penalties. However, the Court refrained from expressing any opinion on the merits or sufficiency of evidence, emphasizing that the appellate authority must reconsider the appeals afresh after addressing jurisdictional issues and affording opportunity for hearing.

4. Maintainability of the Writ Petition Despite Availability of Alternative Remedy

The respondents raised a preliminary objection that the writ petition was not maintainable since the petitioners had an alternative remedy of appeal before the Customs, Excise and Service Tax Appellate Tribunal.

The Court acknowledged the general rule that alternative statutory remedies preclude writ jurisdiction but clarified exceptions where writ jurisdiction may be exercised: (i) where the impugned order violates principles of natural justice, and (ii) where the authority acts without jurisdiction. The Court held that since the appellate authority failed to consider a jurisdictional plea, this Court was justified in interfering under Article 226 despite the availability of alternative remedies.

5. Application of Limitation Principles and Exclusion of Writ Period

The Court reiterated settled legal principles that limitation for filing statutory appeals can be extended or condoned for short delays and that periods during which writ petitions are pending may be excluded from limitation calculations if the writ petition relates to the same subject matter and is filed bona fide.

Applying these principles, the Court found that the petitioners' two-day delay in filing appeals should have been condoned and the writ period excluded, supporting restoration of appeals for fresh adjudication.

Significant Holdings:

"No one can find out as to what was smuggled in a container, once a container is cleared after all the statutory formalities are carried out and the cargo disappears into the market."

"Merely on the basis of confession statements recorded from the petitioners and the alleged corroborative statements made by the person, who cleared the cargo and who transported the same, a presumption of this nature cannot be drawn."

"Where an authority acts without jurisdiction it is open to the High Court in the exercise of jurisdiction under Article 226 of the Constitution of India to interfere with such an order even if an alternative remedy is available."

"The period during which W.P (C) No.19102/2018 was pending before this court i.e., from 08-06-2018 till 29-06-2018 must be excluded for the purpose of determining any period of limitation within which the petitioners have to prefer an appeal."

"The appeals leading to Exts.P7 and P8 orders will stand restored to the file of the 1st respondent. The 1st respondent shall take a fresh decision on those appeals after affording an opportunity of hearing to the petitioners within a period of 2 months from the date of receipt of a certified copy of this judgment."

The Court's final determinations are:

(i) The appellate orders imposing penalties and confiscation in respect of goods covered by the 71 shipping bills are set aside for failure to consider jurisdictional objections.

(ii) The dismissal of the petitioners' appeals on limitation grounds is set aside, and the appeals are restored for fresh consideration.

(iii) The appellate authority is directed to consider any jurisdictional pleas and decide the appeals afresh within two months, after affording the petitioners an opportunity of hearing.

(iv) The period during which the writ petition was pending before the High Court is excluded for limitation purposes.

(v) No observations in the judgment are to be construed as findings on the merits of the case; the appellate authority is free to decide the matter in accordance with law.