TMI Blog2021 (6) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authorities are competent to grant even the interim orders and consider the appeal on merits by affording opportunity to all the parties. In the present case, the impugned order itself reveals that the petitioner, if aggrieved, has to prefer an appeal before the Commissioner of Customs (Appeals), Custom House, 5th Floor, Chennai 600 001, under Section 128(1) of the Customs Act, 1962, within 60 days of communication of the impugned order. The petitioner, instead of preferring an appeal, has chosen to move the present writ petition and such an approach cannot be appreciated by this Court, in view of the fact that the Appellate authority namely, the Commissioner of Customs (Appeals) is competent to deal with all the legal grounds raised in the present writ petition by the petitioner - Even legal practitioners are allowed before the Commissioner of Customs (Appeals) and therefore, the interest of the litigants are to be protected and their representatives or learned counsels can contest the appeal by following the procedures as contemplated. Petition dismissed. - W.P.No.12489 of 2021 And W.M.P.Nos.13265 & 13266 of 2021 - - - Dated:- 9-6-2021 - Honourable Mr. Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred in the proceedings dated 01.03.2021. The writ petition is filed, based on the incorrect facts and the impugned order reveals that the appeal is to be filed under the Customs Act by the petitioner by following the procedures as contemplated. Thus, the writ is to be dismissed. 7. This Court is of the considered opinion that statutory appellate remedy provided under the Act is a valuable right conferred on a litigant. Thus, such a right cannot be dispensed with in a routine manner, even by the High Court under Article 226 of the Constitution of India. Facilitating an aggrieved person to prefer an appeal, has got a definite meaning and an opportunity is provided to consider the original documents and the grounds raised by the aggrieved parties. Therefore, the appellate remedy contemplated under the statute cannot be dispensed with in a routine manner in a writ proceedings. In all such cases, the appeal remedy is to be exhausted by the aggrieved person by following the procedures as contemplated. The appellate authorities are competent to grant even the interim orders and consider the appeal on merits by affording opportunity to all the parties. Thus, entertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late remedy, the Hon'ble Division Bench of this Court in W.A.No.640 of 2021 [M/s.Fourceess Diamond Pvt. Ltd. and another v. The Joint Commissioner of Customs (Air Cargo), Meenambakkam, Chennai] delivered a judgment on 25.02.2021 and the relevant paragraphs are extracted hereunder : 8. After elaborately hearing the learned counsel for the appellants and the learned Senior Standing Counsel appearing for the respondent, we are of the view that the issues raised in the writ petition are not purely questions of law, but mixed questions of fact, which would require a process of adjudication. Such matters cannot be decided by a Writ Court based on affidavits. Therefore, we do agree with the ultimate conclusion of the learned Writ Court that the appellant should avail the alternate remedy available under the Act. 9. For the reasons, which we have assigned in the preceding paragraph, the Writ Appeal stands dismissed and the appellants are granted 60 days time from the date of receipt of a copy of this judgment to file an appeal before the Commissioner of Customs (Appeals) and if the same is filed, the Commissioner of Customs (Appeals) shall entertain the appeal, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The High Court, under Article 226 of the Constitution of India, is not expected to usurp the powers of the appellate authorities by adjudicating the merits of the matter on certain documents and evidences. In the event of adjudication of merits under Article 226 of the Constitution of India in the absence of complete trial with reference to the documents and evidences, there is a possibility of miscarriage of justice, and therefore, the High Court is expected to be cautious, while entering into the venture of adjudication of certain merits with reference to the original documents and evidences produced by the respective parties to the lis. This being the legislative intention, High Court is expected to trust the institutional authorities as well as the hierarchy of institutions contemplated under the Statutes. Institutional respects are of paramount importance for providing complete justice to the parties and the various stages of adjudication are important for the purpose of correcting omissions, commissions, errors in appreciation of evidence, etc. Powers of the High Court under Article 226 of the Constitution of India cannot be extended nor widened so as to allow lay hands on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise. However, the Courts are expected to ensure that all such legal grounds available to the parties are adjudicated before the proper Forum and only after exhausting the statutory remedies, writ petitions are to be entertained. In the absence of exhausting such remedies, High Court is loosing the benefit of deciding the matter on merits as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide an unnecessary opportunity to the assessee to escape from the liability merely on the ground on jurisdictional error, which is rectifiable. 19.This being the facts and circumstances established, this Court has no hesitation in arriving at a conclusion that the petitioners are bound to exhaust the appellate remedy, either under Section 128 or Section 129 of the Customs Act, respectively. Thus, the petitioners are at liberty to approach the appellate authority and file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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