TMI Blog2018 (7) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... MR. BANWARI LAL SHARMA, JJ. For The Petitioner : Mr. Priyadarshi Manish For The Respondent : Mr. R.D. Rastogi, ASG with Mr. C.S. Sinha Mr. Siddharth Ranka, Mr. Kinshuk Jai Order We have heard counsel for the parties. Mr. R.D. Rastogi, ASG has relied upon the following decisions:- 1. In Special Director and anr. vs. Mohd. Ghulam and anr. reported in (2004) 3 SCC 440, it has been held as under:- 5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance for hearing dated 09.07.2001. The Assessee sought for an adjournment which was not granted and the assessments were completed ex-parte under Section 144 of the Act raising a tax demand of ₹ 2,45,87,625/- and ₹ 6,32,972/- for Assessment Years 1995-96 and 1996-97, respectively by orders dated 09.07.2001 and 28.03.2001, respectively. Further, penalty proceedings under Section 271(1)(c) of the Act were also initiated for both Assessment Years. 3. In Authorized Officer, State Bank of Travancore and anr. vs. Mathew K.C. Civil Appeal No.1281/2018 decided on 30.1.2018, it has been observed as under:- 11. In Satyawati Tandon (supra), the High Court had restrained further proceedings Under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved Under Section 17 before the Tribunal and the appellate remedy Under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: 43. Unfortunately, the High Court overlooked the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 20. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the Assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana MANU/SC/0017/1985 : (1985) 3 SCC 267 this Court has noticed that if an appeal is from Caesar to Caesar's wife the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in our judgment in Section 35 of FEMA, any order' or decision' of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law. 27. In a case where right of appeal is limited only from a final order or judgment and not from interlocutory order, the Statute creating such right makes it clear [See Section 19 of the Family Courts Act, 1984] which is set out below: ( 19). Appeal (1) Save as provided in Subsection (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. 37. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if High Court had territorial jurisdiction it should not have entertained a writ petition which impugns an order of the Tribunal when such an order on a question of law, is appealable before the High Court under Section 35 of FEMA. 38. Learned Counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan v. Pandit Durga Prasad (D) By Lrs. and Ors. : (2003) 5 SCC 399. Learned Counsel relied on paragraph (13) of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a Statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The impugned order in original is appealable. The petitioner has chosen not to prefer an appeal therefrom. The scope of inference with an order passed by an authority acting under a statute can be summarized as (i) if the authority concerned has acted in breach of principles of natural justice (ii) impugned order is without jurisdiction (iii) if the impugned order is demonstrated to be perverse (iv) if the impugned order is vitiated by fraud or bias or malice and (v) if the impugned order is non-speaking. A writ Court need not be converted into a first appellate authority. Although there exists a right of appeal, the petitioner has chosen not to prefer the same. The impugned order is reasoned. It deals with the show causecum- demand notices and the reply thereto. It appears from the record that, the Directorate of Revenue Intelligence, Kolkata Zonal Unit had gather information that one Kolkata-based export company was attempting to export or had exported substantial quantity of Muriate of Potash falling under a restricted item for export as per the exim policy of 2009-14 of the Government of India in the guise of another material through Kolkata Port to a person in Malaysia. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the adjudicating authority had acted without jurisdiction in imposing penalty under Sections 114 and 114AA of the Customs Act, 1962. Inspite of specific question put to Mr. Ranka counsel for the respondent regarding imposition of duty, he could not point out whether duty is liable to be imposed on the assessee, therefore, in our considered opinion, impugned order of penalty, redemption of fine and confiscation seems to be prima faice without jurisdiction. In that view of the matter, without expressing any opinion on the question of alternative remedy, to meet with the ends of justice, this court is bound to exercise its power under Article 226 of the Constitution of India to prevent injustice which has been done to the assessee. In our considered opinion, this is a fit case, where the High Court should exercise power otherwise this will amount to putting premium on the petitioner who is not required to pay even basic duty and penalty. Therefore, the writ petitions are admitted. Notice need not be issued as the respondents are duly represented. List for final hearing on 30.5.2018. Till decision of the petitions, no coercive action shall be taken against the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
