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2016 (7) TMI 1149 - MADRAS HIGH COURT

2016 (7) TMI 1149 - MADRAS HIGH COURT - 2016 (344) E.L.T. 841 (Mad.) - Maintainability of Writ Petition - alternate appellate remedy - question of limitation - Lapse on the part of Superintendent of Central Excise and Customs - disciplinary proceedings have been initiated against the petitioner. - a penalty of ₹ 1,74,940/- has been imposed on the petitioner under Section 112A(ii) of the Customs Act and a penalty of ₹ 5,50,10,690/-, under Section 104AA of the Customs Act. - Held that: .....

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it would prejudice the petitioner at the time of filing the appeal, as this Court is fully convinced that the Writ Petition cannot be entertained as serious, disputed and complicated questions of fact are involved and therefore, the petitioner should be necessarily relegated to avail the appellate remedy provided under the Customs Act. - Accordingly, the Writ Petition is dismissed as not maintainable, giving liberty to the petitioner to prefer an appeal before the Appellate Authority and whi .....

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.Srinivas, learned Standing counsel appearing for the respondent. 2. The petitioner is working as a Superintendent of Central Excise and Customs at Coimbatore and he has come to adverse notice of the Department and was placed under suspension by order passed by the Commissioner of Central Excise, Coimbatore, dated 04.02.2014. Subsequently, the Suspension Review Committee had reviewed the matter and the suspension was revoked with effect from 05.11.2015 and it is stated that disciplinary proceedi .....

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poration, a proprietary concern owned by one R.Parivallal at Bangalore, filed two bills of entries dated 21.12.2013 and 20.01.2014 at the Inland Container Depot, Irugur, through their Customs House Agent M/s.Nippon Express (India) Pvt., Ltd., for import of certain goods declared as Carbon Black Feed Stock (CBFS), which was stuffed in four and six containers respectively. The importer claimed classification of the goods under Customs Tariff No.28030090 attracting rate of duty of 22.583% and self .....

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e ground that it was not sealed properly. 3. It was further stated that the Assistant Commissioner of Customs, ICD, Irugur, who was present at the time of drawl of sample on 30.12.2012, is said to have noticed that the colour and viscosity of the sample returned by the Central Laboratory was different from the original sample, he had seen at the time of drawl of sample. Suspecting tampering the said officer had conducted enquiries with all the officers and gathered information and brought the ma .....

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le drawn with pre-filled cans at the point of drawl. However, he denied having helped the importer in substitution of the sample. A second statement was recorded from the petitioner on 27.01.2014, wherein he stated to have admitted that he had received the pre-filled samples from the importer's son and he had handed over the original samples taken from the containers to the importer's son and substituted samples were handed over to the Inspector, ICD, Irugur. Further, in the statement, t .....

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notice as well as in the impugned order-in-original and suffice to state that while issuing the show cause notice, the respondent stated that the petitioner admitted in his statement dated 27.01.2014, to having facilitated the substitution of the sample, despite being told by the importer that the import cargo was of the inferior quality, therefore, he had abetted the commission of offence punishable with penalty under Sections 112, 114AA of the Customs Act and opportunity was granted to the pet .....

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im cannot be relied on. Subsequently, personal hearing was granted in which the petitioner appeared through a consultant and made written submission, which has been referred to in the impugned order from paragraph 39 onwards. In paragraphs 65 and 66 of the impugned order, the respondent, while adjudicating the show cause notice, has considered the petitioner's submissions and recorded a finding that defence raised by the petitioner lacks credibility and the petitioner was held to be guilty o .....

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not availed the alternate remedy against the impugned order. The learned counsel elaborately referred to the factual matrix and referred to the averments made in the affidavit filed in support of the Writ Petition to state that the statements were recorded from the petitioner by putting tremendous pressure and coercion from the department to accept the allegations against him and the letter given by the petitioner dated 10.06.2016, will clearly prove that the allegations made against the petiti .....

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osed that the petitioner has substituted the samples and they have deposed that at the time of drawing the samples the colour is sticky black. The petitioner would state that even this is not correct since during subsequent verification, the officers found it is greenish. Therefore, the learned counsel endeavoured to submit that there is no evidence to the effect that the petitioner changed the samples and mens rea was not established. In the affidavit filed in support of the Writ petition, the .....

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he matter was heard on 19.07.2016, the learned Senior counsel appearing for the petitioner elaborately reiterated the factual matrix of the matter. A legal submission was put forth by referring to Section 155 of the Customs Act and it submitted that the said provision contains two sub-sections and sub-section (2) is an independent provision which stipulates a period of limitation for initiating proceedings against Central Government or any Officer of the Government or a local authority for any t .....

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t is submitted that the entire proceedings are barred by limitation. In support of his contention, the learned counsel placed reliance on the decision in the case of Golla Rama Rao vs. UOI reported in 200 (124) E.L.T 112(Mad) and two decisions of the Tribunal in the cases of Commissioner of Customs, New Delhi vs. M.I.Khan reported in 2000 (120) ELT 542 (T) and Commissioner of Cus., & C.Ex.Hyderabad-II, vs. Rajiv Kumar Agarwal, reported in 2007 (217) ELT 392. The learned Senior counsel furthe .....

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OI vs. T.R.Verma reported in AIR 1957 SC 882 and the decision of the Hon'ble Division Bench of the Allahabad High Court in the case of Rama Dairy Products Ltd., vs. Secretary, UP Krishi Utpadan, reported in 2004 138 STC 508 and submitted that the remedy provided under the statute must be followed and the Writ should not be generally entertained unless the statutory remedies are exhausted. 7. On facts, it was pointed out that the importer was not sure about the non-hazardous nature of the car .....

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ight variation in the description, such as dark green or black does not affect the identity of the cargo since both these colors are similar and refer to the same material. The descriptions provided in the statement of the officers and that given in the inventory taken by officers were as per the perception of the colors by the respective officers. 8. The learned counsel submits that the petitioner has been cast upon the duty to seal the samples immediately on drawing it and the presumption is t .....

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ragraph 65 of the impugned order, it is pointed out that all the persons have deposed that the samples had physically passed through the petitioner supporting the theory of substitution. It is submitted that the penalty under Section 112 is for abetment of the offence and the penalty under Section 104AA is for causing to be made, signed or used any declaration or document, which is false or incorrect in any material particular as provided under the said section It is further submitted that the s .....

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to by-pass the appeal remedy available to him primarily on three grounds, firstly by contending that the entire proceedings are barred by limitation in terms of Section 155(2) of the Customs Act. By referring to the decision in Golla Rama Rao vs. UOI,(supra) it is pointed out that similar provision under the Central Excise and Salt Act, 1944, namely, Section 40 was considered in the said judgment and it was pointed out that Section 40(2) which is in para materia with Section 155(2) of the Custo .....

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r two grounds, which have been raised by the petitioner to by-pass the appeal remedy is stating that the documents have not been furnished and copies of the statements have not been furnished. 11. In Dr.K.Nedunchezhian vs. The Deputy Commissioner of Income Tax, Central Circle, Salem reported in (2005) 2 MLJ 243, the Hon'ble First Bench of this Court was considering a matter arising under the Income Tax Act in which the Court framed a question as to whether in Tax matter when alternate remedy .....

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r vs. Dunlop India Limited reported in AIR 1985 SC 330). 12. In several other decisions referred therein, it was pointed out that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative Writ, that it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds to do otherwi .....

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