TMI Blog2022 (3) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... he direction issued by the learned writ Court in the earlier writ petition was by directing the fifth respondent to give an opportunity of hearing and pass a speaking order. Opportunity of hearing should be an effective opportunity of hearing and not illusory. There may be several cases where under the pretext of being infected by Covid-19 virus several employees had not reported for duty. There is every likelihood that the Customs Department would also have such cases. That apart, all establishments were functioning with less than 30% staff, public transport system was withdrawn. There was also restriction on plying of private vehicles on road. Therefore, the opportunity granted to the appellant is held to be thoroughly inadequate. Further, it is reiterated that the direction for release of the goods upon compliance of certain conditions can have no impact on the direction issued on the fifth respondent to pass a final order after granting opportunity of hearing to the appellant. The appellant need not be relegated to avail the alternative remedy - the order dated 21.1.2022 impugned in the writ petition is unsustainable in law and in violation of principles of natural justice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications dated 27.10.2021 and 04.12.2021 and to permit the appellant to withdraw/cancel the ex-bond Bill of Entries. The writ petition was disposed of by order dated 11.1.2022. 3) To examine as to what relief the appellant would be entitled to in the appeal, we need to take note of the order passed by the learned Single Judge dated 11th January, 2022. The operative portion of the order reads as follows:- Considering the respective submission of the parties, I am of the view that the only scope for consideration in this writ petition is with regard to consideration of the petitioner s application for cancellation or withdrawal of the Ex-bond relating to Bill of Entries in question which, sitting in writ court, I am not inclined to act as an adjudicating authority. Hence I remand the matter to the respondent concerned to consider the petitioner s application for cancellation/withdrawal of the Ex-bond relating to Bill of Entry in question afresh in accordance with law by passing a speaking order, after giving an opportunity of hearing to the petitioner or its authorized representative, within four weeks from the date of communication of this order. In the meantime, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy under the statute. The Hon ble Supreme Court in several decisions have culled out certain exceptions to the restriction in refusing to entertain a writ petition when alternate remedy has been provided for. Some of the exceptions being that when an order was passed in violation of principles of natural justice; when the order has been passed without application of mind; or where the order suffers from the vice of total lack of jurisdiction etc. If the appellant s case falls within any one of the exceptional circumstances they need not be relegated to the statutory remedy. 6) Admittedly, the order impugned in the writ petition passed by the fifth respondent was an ex parte order. We are at a loss to understand as to why the fifth respondent had taken such a hurried step to complete the proceeding and pass an order. This presumably was done with the intention to make one portion of the direction issued by the learned Single Judge in its order dated 11.1.2022 as unworkable. The fifth respondent has misread the direction issued by the learned Single Judge in the above quoted order containing twin directions. The first one being the matter is remanded to the fifth respondent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance on the decision of the Hon ble Supreme Court and the ordinance issued by the Central Government. Thus, the appellant has pleaded a genuine difficulty that its consultant being tested positive for Covid-19 and unable to appear. Such request has to be accommodated unless it is shown to be absolutely false. 11) Mr. Banerjee, learned senior standing counsel for the revenue has drawn our attention to paragraph 19.1 of the order passed by the fifth respondent dated 21.1.2022. This is with a view to show that there was a doubt raised in the mind of the authority that as to whether at all the appellant s legal consultant had been tested Covid-19 positive. In any event the direction issued by the learned writ Court in the earlier writ petition was by directing the fifth respondent to give an opportunity of hearing and pass a speaking order. Opportunity of hearing should be an effective opportunity of hearing and not illusory. There may be several cases where under the pretext of being infected by Covid-19 virus several employees had not reported for duty. There is every likelihood that the Customs Department would also have such cases. That apart, all establishments were function ..... X X X X Extracts X X X X X X X X Extracts X X X X
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