TMI Blog2009 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... MAR, JJ Mr. P. S. Raman, Senior Counsel for M/s. BFS Legal Mr. P. V. Balasubramanian for Petitioner in all writ petitions Mr. T. R. Senthilkumar, Standing Counsel for Central Board of Excise Customs for Respondents 1 2 in W.P.No.9934/2009 and Respondents 1,2 4 in W.P. Nos. 9935, 10264, 10432, and 10730/2009 Mr. P. Saravanan for 3rd Respondent in W.P. No. 9934/2009 Mr. Arvind P. Dattar, Mr. Vijay Narayan Senior Counsels for M/s. Anand Anand, Mr. M. S. Bharath Mr. Premchander Mrs. Gowri Tirumurti for 3rd Respondent in W.P.Nos.9935 10730/2009. Mr. M. Venkatachalapathy, Senior Counsel, for Mr. G. K. Muthukumar for 3rd Respondent in W.P.No. 10264 /2009 Mr. A. Rameshkumar for 3rd Respondent in W.P.No. 10432/2009 COMMON ORDER The prayer in these writ petitions are to quash the orders dated 18.5.2009 and 20.5.2009, passed by the Assistant Commissioner of Customs, Chennai, insofar as W.P.Nos.9934 and 9935 of 2009 are concerned; the order dated 20.5.2009 passed by the Commissioner of Customs, Mumbai, insofar as W.P.No.10264 of 2009; and the orders dated 30.5.2009 and 8.6.2009 passed by the Assistant Commissioner of Customs, New Delhi, insofar as W.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Cargo Complex, Chennai-27, is thereby bound to inform all other customs offices throughout India and prevent the entry of any goods that infringe his patent rights. (f) The petitioner filed W.P.No.1570 of 2009 before this Court for issuing a writ of mandamus directing the Union of India, Chief Commissioner of Customs, Commissioner of Customs (Air), Chennai-27, and Commissioner of Customs (Sea), Chennai, to take all appropriate steps to prevent infringement of his registered patent No.214388 by detecting illegal imports and accessing of mobile phones having technology with use of two sim cards (dual sim) at the point of entry itself. In the said writ petition counter affidavit was filed by the respondents stating that the approval of the registration of patent holder notice was made on 19.1.2009 and thereafter action had been taken by the Commissioner of Customs (Air), Airport, Air Cargo, Chennai, Chennai-27, from 27.1.2009 onwards. This Court disposed of the writ petition on 23.2.2009 by observing as follows: "3. Paragraphs 21 of the counter affidavit is usefully extracted hereunder: "21. I further submit that there are no imports of dual SIM phones through Chennai Seaport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd respondent called for examination of the goods and also decided to hear the matter on merits. The petitioner was called upon to demonstrate his patent right and also called upon for hearing on 13.3.2009 insofar as W.P.Nos.9934, 9935 of 2009; on 5.5.2009, 18.5.2009 and 6.5.2009 insofar as W.P.Nos.10264, 10432 and 10730 of 2009 are concerned. Petitioner submitted detailed explanation and demonstrated and according to the petitioner his patent was infringed by the third respondent concerned by the imported goods. (k) The petitioner claims that he explained to the second respondent that the term simultaneous use which was contested was proved by the fact that both sims were activated and were communicating to their respective towers. The importers contended that as simultaneous voice communication was not possible in his product, the same did not amount to infringement of the patent right of the petitioner. (l) The second respondent sought for written submissions clarifying the technical aspect of the petitioner's patent. According to the petitioner, the second respondent in these writ petitions viz., Assistant Commissioners of Customs/Commissioner of Customs have no technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is contended that the impugned orders passed are not by the Assistant Commissioner of Customs, Chennai, and hence the petitioner can file writ petition only before the concerned High Courts within whose territorial jurisdiction the impugned orders are passed viz., Bombay High Court and Delhi High Court, particularly when no cause of action has arisen at Chennai to file these writ petitions before this Court. (iv) It is also specifically stated in the counter affidavit that in all the above cases personal hearing was given to the petitioner/his representative and insofar as W.P.No.10730 of 2009 is concerned, neither the petitioner nor the authorised representative appeared for hearing nor sought for extension of time and also failed to file any written submissions. Eventhough personal hearing was originally proposed on 6.4.2009 it was subsequently postponed to two weeks and finally personal hearing was fixed on 6.5.2009 and in spite of service of notice sent through E-mail to the petitioner. 5. The third respondents in these writ petitions filed counter affidavits and raised the above said preliminary objections, apart from the merits of the cases. In the counter affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above said two issues by the learned Senior Counsel for the petitioner as well as learned Senior Counsels for the respective third respondents in each of these writ petitions and other respective counsels. 7. Mr.P.S.Raman, learned Senior Counsel appearing for the petitioner submitted that as there are violations of principles of natural justice while passing the impugned orders, the petitioner is entitled to challenge the same in these writ petitions, without availing alternate remedy of filing appeal. The learned Senior Counsel submitted that the above referred five orders are passed by three different authorities viz., two at Chennai, two at New Delhi and one at Mumbai, and by filing appeal against the said orders in three different places, the petitioner would be put to serious difficulties. The learned Senior Counsel also submitted that the authorities, who passed the impugned orders have no jurisdiction to interpret the patent rights of the petitioner. It is further submitted that in W.P.No.10730 of 2009, without hearing the petitioner, the impugned order was passed and insofar as other cases are concerned there is violation of principles of natural justice and once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner and the competent authority factually found that there is no infringement of the petitioner's patent rights in respect of the imported goods. The learned Senior Counsel submitted that if the facts are in dispute, the writ Court is not the appropriate Court to seek remedy to the petitioner and normally this Court under Article 226 of the Constitution will not go into the disputed facts. In support of his contention he produced several decisions. The learned Senior Counsel also submitted that the authority, who passed the impugned orders, followed the principles of natural justice. Insofar as W.P.No.10730 of 2009 is concerned, the petitioner failed to appear in person or through his representative in spite of providing personal hearing, for which the petitioner alone can be blamed. Since the principles of natural justice is followed while passing the impugned orders by the authorities concerned, the petitioner is bound to file appeal before the Statutory Authority as contemplated under the provisions of the Customs Act, 1962, where the hierarchy of the officers are mentioned to file appeal. On the above said two grounds viz., disputed facts cannot be decided in writ jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anan, learned counsel appearing for the third respondent in W.P.No.9934 of 2009 submitted that the impugned order was passed by the Assistant Commissioner, in exercise of the powers conferred under Rule 11(1) of the Rules, after getting expert opinion and the petitioner having not challenged the Rules, can challenge the impugned order only before the appropriate appellate authority. 11. Mr.T.R.Senthilkumar, learned Standing Counsel appearing for the Central Board of Excise Customs, submitted that whether the petitioner's patent right is infringed or not can be decided by the appellate authority and there is no extraordinary circumstance to file the writ petitions before this Court, without availing the alternate remedy, in these cases. The learned counsel submitted that as per Rule 7, decision has to be taken with regard to perishable goods within three days and insofar as non-perishable goods are concerned, decision has to be taken by the authorities within ten days. The learned counsel also relied upon the judgment of this Court reported in (2005) 2 MLJ 246 : 2006 (205) ELT 9 (Mad) ( Nivaram Pharma Pvt. Ltd. v. CEGAT, Madras ) and contended that when effective alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner is allotted Unique Permanent Registration Number (UPRN A0167INMAA4PR) and the case of the petitioner is that the Commissioner of Customs Chennai, Airport Air Cargo, Chennai-27, is statutorily bound to inform the other Customs Officers throughout India and prevent the entry of any goods that infringe his patent. The petitioner has also filed C.S.No.221 of 2009 before this Court, in which he has obtained interim order on 23.3.2009. 16. It is the case of the petitioner that anybody imports any goods, which likely to infringe his patent rights, shall get clearance from the Customs Officer of the respective area as required under Notification No.47/2007-Customs(NT), issued by the Government of India, Ministry of Finance, Department of Revenue, New Delhi dated 8.5.2007, in and by which the Government of India issued Intellectual Property Right (Imported Goods) Enforcement Rules, 2007. Under Rule 3 notice can be issued, which reads as follows: "3. Notice by the right holder:- (1) A right holder may give notice in writing to the Commissioner of Customs or any Customs Officer authorised in this behalf by the Commissioner, at the port of import of goods infringing intelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where upon determination by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, it is found that the goods detained or seized have infringed intellectual property rights, and have been confiscated under section 111(d) of the Customs Act, 1962 and no legal proceedings are pending in relation to such determination, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, destroy the goods under official supervision or dispose them outside the normal channels of commerce after obtaining 'no objection' or concurrence of the right holder or his authorised representative: Provided that if the right holder or his authorised representative does not oppose or react to the mode of disposal as proposed by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, within twenty working days after having been informed, or within such extended period as may have been granted by the Commissioner at the request of the right holder, not exceeding another twenty working days, he shall be deemed to have concurred with the mode of disposal as proposed by the Deputy Commissioner of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to decide the issue as to whether the imported goods infringed the patent right of the petitioner, is the respective third respondent in these writ petitions, who have passed the impugned orders. Therefore it cannot be contended by the petitioner that the impugned orders are without jurisdiction. The said rules are not challenged by the petitioner. 19. Whether the third respondent in these cases have infringed the patent rights of the petitioner is the disputed question of fact. The second respondent in these writ petitions have given a finding that the importers have not infringed the patent rights of the petitioner and allowed the clearance of the goods. It is not in dispute that the impugned orders passed by the department are appealable orders under section 128 and 129A of the Customs Act, 1962. It is the admitted case of the petitioner as well as respondents that as against the impugned orders passed in W.P.No.9934 and 9935 of 2009, statutory appeal is provided under section 128 of the Customs Act, 1962, before the Commissioner of Customs (Appeals), Customs House, Chennai -1. Insofar as W.P.No.10264 of 2009 is concerned, statutory appeal is provided under section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers the contesting respondents may further import goods, which may further infringe the patent rights of the petitioner. Any import made by any person will be verified every time by the concerned Customs officials and petitioner will be given notice to establish his rights. 21. As rightly contended by the learned counsel for the respondents, not only the facts are in dispute in these cases, but also the alleged violation of principles of natural justice itself is disputed by the petitioner as well as the respondents. It is well settled in law that the disputed facts cannot be decided in a writ petition under Article 226 of the Constitution of India. 22. Whether the High Court is entitled to go into the disputed questions of fact in a writ petition filed under Article 226 of the Constitution of India, is already decided by the Honourable Supreme Court. (a) In (1976) 1 SCC 292 ( Arya Vyasa Sabha and Others v. The Commissioner of Hindu Charitable and Religious Institutions Endowments, Hyderabad and Others ) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court. (b) In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Supreme Court held thus, "6. We have heard counsel for the parties. We fail to understand how the High Court could have exercised its jurisdiction under Articles 226 and 227 of the Constitution to set aside a decree/final order passed by the DRT on 9-4-2003, in a collateral proceeding wherein the decree/final order was challenged indirectly on the ground that the application of the respondent for cross-examining the deponent had earlier been wrongly rejected. We have no hesitation in holding that when the DRT did not accede to the request of the respondent to cross-examine the deponent, it could have, in the appeal preferred by it, assailed the decree/final order on that ground and the Appellate Authority would have passed appropriate orders. The mere fact that the respondent had not been given an opportunity to cross-examine the deponent did not enable the respondent to bypass the provision for appeal and approach the High Court directly by a writ petition under Articles 226 and 227 of the Constitution, challenging the decree/final order on the ground that the order earlier passed, refusing to permit the cross-examination of the deponent, was erroneous." (Emphasis Supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench of the Supreme Court in G.Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 held that as the Motor Vehicles Act is a self contained code and itself provides for a forum for appeal/revision, the writ jurisdiction should not be invoked in matters relating to its provisions. A similar view was taken in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited , 1985 (19) E.L.T. 22 (SC) = AIR 1985 SC 330. 8. In Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited (supra) the Supreme Court observed: "In Titaghur Paper Mills Co. Ltd. v. State of Orissa - AIR 1983 SC 603 A.P.Sen, E.S.Venkataramiah and R.B.Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive remedy is available. 13. In W.P.No.981 of 2003 (Tax) (M/s.Khandelwal Soya Industries Ltd. v. State of U.P. and others) decided on 27.8.2003 a Division Bench of the Allahabad High Court dismissed a writ petition challenging the provisional assessment orders under the U.P.Trade Tax Act on the ground of alternative remedy under Section 9 of that Act. Against the aforesaid judgment, Special Leave Petition was filed before the Supreme Court which has been dismissed. We respectfully agree with the view taken by the Allahabad High Court in the aforesaid decision. 14. We are therefore surprised that the writ petition was entertained at all by this Court." (c) Same is the view taken by Division Benches of this Court in W.A.No.1555 to 1557 of 2007 dated 10.12.2007; W.A.Nos.749 750 of 2006 dated 22.6.2006 and W.A.Nos.590 591 of 2008 dated 11.6.2008. In W.A.No.590 591 of 2008 the First Bench of this Court by order dated 11.6.2008 held as follows: "2. These writ appeals have been filed challenging an order passed by the learned single Judge, dated 17.9.2007. Subject matter of the challenge was an order passed by the Assessing Authority under the Tamil Nadu General Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of personal hearing to hear the matter on 6.5.2009 was issued on 30.4.2009 and final date for demonstration of the patented goods was fixed on 18.5.2009, which was intimated to the petitioner on 14.5.2009. Copies of the above notices were produced before me and the petitioner failed to avail the said opportunity of personal hearing/demonstration. The appellate authority is vested with the power to appreciate the factual aspects and the petitioner can very well establish his right of patent before the appellate authority. 29. In the light of the above finding that in these cases the petitioner is having effective and efficacious alternate remedy and the violation of principles of natural justice itself are in dispute and the factual controversy with regard to the infringement of the patent rights of the petitioner, I am of the view that these writ petitions filed challenging the impugned orders, without availing the alternate remedy provided under sections 128 and 129A respectively of the Customs Act, 1962, cannot be maintained and the writ petitions are liable to be dismissed granting liberty to the petitioner to avail the statutory remedy provided under the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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