TMI Blog2021 (6) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... troductory portion of the impugned order reveals that an appeal against the impugned order lies with the Commissioner of Customs (Appeals), 5th Floor, Customs House, Chennai, under Section 128(1) of the Customs Act, 1962, within 60 days of the communication of the impugned order. In the event of non-filing of an appeal, the litigants are not only deprived of an opportunity, but the High Court cannot appreciate those facts culled out with reference to the documents and evidences. The appellate authority in the event of passing an order, with reference to the facts and the grounds raised, it would be convenient for the High Court to consider the further proceedings, if any in the light of the findings by the original authority as well as by the appellate authority. These aspects are vital in order to form a clear opinion, which would be of paramount importance to render justice - Thus, the importance of an appeal under a statute cannot be undermined by the High Court by dispensing with the appellate remedy. Petition dismissed. - W.P.No.12498 of 2021 And W.M.P.No.13270 of 2021 - - - Dated:- 9-6-2021 - Honourable Mr. Justice S.M.Subramaniam For the Petitioner : Mr.Hari R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the export obligation and that an application was already filed with the 1st respondent on 21.01.2016. The petitioner states that all the copies of shipping bill and related documents were also submitted. The petitioner meanwhile sent reminders to the 1st respondent seeking issuance of the export obligation discharge certificate. The second respondent was requested to keep the adjudication proceedings in abeyance till a decision was taken by the first respondent. However, without considering any of these requests made by the petitioner, the impugned-Order-in-Original dated 22.03.2021, confirming the demands of customs duty of ₹ 20,70,798/- (Rupees Twenty Lakhs Seventy Thousand Seven Hundred Ninety-Eight only) was issued. The order also imposed redemption file of ₹ 9,80,000/- (Rupees Nine Lakhs Eighty Thousand only) and penalty of ₹ 2,00,000/- (Rupees Two Lakhs only). 5.The learned counsel for the petitioner contended that the petitioner themselves are aware of the appellate remedy available under the statute against the impugned order dated 22.03.2021. However, the impugned order has been passed without awaiting the decision of the licensing authority. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. Since the importer did not submit Redemption Letter, the case is decided on the basis of documents available on record. 9.This Court is of the considered opinion that the arguments made on behalf of the petitioner as well as the counter arguments advanced by the learned Senior Panel Counsel for the respondents reveal that certain representations or letters or documents, if at all not considered by the original authority, the said documents or letters or grounds are to be placed before the appellate authority by preferring an appeal under Section 128(1) of the Customs Act. Such disputed facts and circumstances between the parties cannot be adjudicated in a writ proceedings under Article 226 of the Constitution of India. Such an adjudication is to be done by verifying the original documents and records, which all are to be produced by the respective parties before the authorities competent or before the appellate authorities. Thus, the petitioner has to exhaust the appellate remedy contemplated under the statute. 10.Right of appeal is a valuable right of a person. The legislatures intended to prescribe an appellate remedy in order to ensure that the orders passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l grounds, documents and evidences etc., This being the wider scope of the appellate remedy, the parties must be allowed to exhaust such remedy before approaching the High Court. 12.The powers of the High Court under Article 226 cannot be extended to conduct an enquiry with reference to the disputed facts. High Court can go into the procedures contemplated by the competent authorities with reference to the provisions of law and certainly not the decision itself. In this context, it is to be understood that the appellate authority who is empowered to reappreciate the facts with reference to the documents and evidences and such a valuable opportunity cannot be denied to the litigants. In the event of non-filing of an appeal, the litigants are not only deprived of an opportunity, but the High Court cannot appreciate those facts culled out with reference to the documents and evidences. The appellate authority in the event of passing an order, with reference to the facts and the grounds raised, it would be convenient for the High Court to consider the further proceedings, if any in the light of the findings by the original authority as well as by the appellate authority. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavits. 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, without reference to the limitation as the writ petition was filed before this Court in the year 2016, which is well within the period of limitation, had the appellants filed appeals before the Commissioner of Customs (Appeals) at the relevant point of time. 10. Since the learned counsel for the appellants submitted that the certified copy of the impugned order was filed in the writ petition, the Registry is directed to return the impugned original order filed in the writ petition, after retaining a photostat copy. No costs. Consequently, connected miscellaneous petition is closed. 11.This Court is of the considered opinion that all such grounds ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislative 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 the facts and circumstances by conducting the trial, nor certain facts and circumstances with reference to documents and evidences can be assumed or presumed or inference can be drawn, which is not preferable. 15.As far as the judgment of the Hon'ble Supreme Court of India in the case of M/s.Canon India Private Limited (supra) is concerned, as rightly pointed out by the learned Senior Standing Counsels appearing on behalf of the respondents that the matter went to the Hon'ble Apex Court by way of regular appeal and the Hon'ble Supreme Court of India, while adjudicating the final orders passed by the Appellate Tribunal, formed an opinion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an appeal by following the procedures contemplated and by complying with the conditions to prefer the appeal, within a period of 60 days from the date of receipt of a copy of this order, and in the event of filing of appeal(s) by the writ petitioners within a period of 60 days, all such appeals are directed to be entertained without reference to the period of limitation, and the matters are to be adjudicated on merits and in accordance with law and by affording opportunity to all the parties, and the appeals are to be disposed of as expeditiously as possible. 14. With these observations, the writ petition stands dismissed. No costs. Consequently, connected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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