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TMI Blog2003 (3) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared by the petitioners to be 21.5 MT of lithophone, the said amount of materials arrived at the port. Upon arrival of the goods, the petitioners filed a bill of entry dated June 3, 1999 for home consumption making the selfsame declaration. However, the Customs Authorities had some doubt in their mind and after investigation it was detected that out of the said declared amount of 21.5 MT of lithophone, there were actually 10 MT of tetracycline, a prohibited item and 11.5 MT of lithophone. Ultimately, a notice was issued under Section 124 of the Customs Act, 1962 asking the petitioners to show cause why the said consignment valued at Rs. 63,32,018.60p. should not be confiscated under Section 111(d) and 111(m) of the Customs Act and why the importers and their agent should not be penalised under Section 112(a) and 112(b) of the said Act. The petitioners were further asked to show cause why the attempted evasion of duty amounting to Rs. 38,16,729.40p. resulting from wilful mis-declaration of the imported goods should not be paid by them along with interest and why the imported prohibited goods viz. tetracycline should not be confiscated under Section 14 of the Drugs and Cosmetics A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the explanation given by the petitioners were not true. (d) The burden to prove that the defence of the petitioners is baseless or wrong is on the department and the department not having discharged such burden, no action should be taken against the petitioners. (e) Tetracycline could not be confiscated under Section 14 of the Drugs and Cosmetics Act, 1940 and personal penalty could not be imposed under Section 13 of the said Act by the Commissioner of Customs inasmuch as power of confiscation and personal penalty vested only in the Court under Section 15 of the said Act. 4.Ultimately the Commissioner of Customs (Port) by order dated December 29, 2000 passed an order of confiscation of the entire materials weighing 21.5 MT containing 10 MT of tetracycline and 11.5 MT of lithophone under Section 111(d) and 111(m) of the Customs Act, 1962 read with Section 119 thereof and Section 3 of Foreign Trade Development and Regulation Act. By the said order the said respondent, however, gave the petitioners an option to redeem the confiscated goods on payment of a fine of rupees thirty lakh in lieu of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the petitioners. According to Mr. Srivastava, the remedy provided in Section 130A of the Customs Act is not an efficacious alternative remedy of the petitioners. Mr. Srivastava contends that law on the points involved in this writ application having already been settled by the Supreme Court in the case Simens Limited (supra), the remedy of Section 130A cannot benefit the petitioners in any way. Mr. Srivastava further contends that even if it is assumed for the sake of argument that the petitioners have such alternative remedy, existence of such a remedy cannot be an absolute bar in entertaining a writ application if the petitioners can convince this Court that the decision of the Tribunal is contrary to the clear decision of the Supreme Court given on that point. Mr. Srivastava thus prays for overruling the aforesaid preliminary objection. 10.So far the merit of this writ application is concerned, Mr. Srivastava contends that the point involved in this writ application has already been concluded by a decision of the Supreme Court in the aforesaid case of Simens Limited, wherein the Supreme Court held that when the goods have been ordered to be re-exported, neither any red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey reject the contention of the petitioners that for the mistake on the part of the foreign manufacturer those were brought to this country. 12.Mr. Srivastava further contends that in the facts of the present case, the Customs Authority acted illegally in rejecting the contention of the petitioners that through mistake tetracyclines were sent by the foreign manufacturer inasmuch as the petitioners have not been given any opportunity to contradict the undisclosed documents relied upon by the Customs Authority in arriving at the conclusion that there was collusion between petitioners and the foreign manufacturer. 13.According to Mr. Srivastava before coming to such decision, all the documents relied upon by the respondent should be brought to the notice of the petitioners and his clients should be given opportunity of contradicting those documents by giving further evidence. In the absence of disclosure of such documents, Mr. Srivastava contends, those documents should be deemed to be non est and as such, decision of the authority based on those documents should be set aside. 14.Mr. Srivastava thus prays for a direction upon the respondent to refund the redemption fine as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law that mere existence of an alternative remedy available to the petitioners is not an absolute bar in entertaining a writ application under Article 226 of the Constitution of India. In a case where the petitioner alleges that the order impugned is passed in ignorance of a law declared by Supreme Court, a writ Court can entertain a writ application for verifying whether the contention of the petitioner is correct or not. Similarly, if it is alleged that the order impugned is passed by not following the principles of natural justice, a writ Court can go into that question notwithstanding existence of alternative remedy. In the present case, Mr. Srivastava having vehmently contended that the order of the Tribunal is contrary to a settled law laid down by Supreme Court and that in holding that this case was not one of bona fide mistake of the foreign manufacturer, the Customs Authority acted against the principle of natural justice by relying upon undisclosed materials, such pleas can be investigated in a writ application even if the petitioners have other alternative remedy. Under the aforesaid circumstances, I turn down the preliminary objection raised by Mr. Bandyopadhyay a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an interim application in the appeal and an order was passed on 22nd February, 1999. By the said order the Supreme Court having regard to the facts that were brought to its notice, extended the period of three months fixed by the adjudicating authority for re-export of the goods in which event neither the redemption fine nor the duty was liable to be paid. In such circumstances, the Supreme Court held that the appeal should be allowed and the respondent should be directed to refund to the appellant an amount of rupees six lakh paid by way of redemption fine. 23.In my view, the said decision cannot be read as an authority for a proposition of law that whenever an order has been passed for re-export, no redemption fine can be at all chargeable. In this case, as pointed out earlier, the adjudicating authority has given the petitioners an option to redeem the confiscated goods on payment of fine of rupees thirty lakh and it was specifically made clear that option should be exercised within three months or such extended period as may be allowed by the Commissioner. It was further provided that after redemption, the importer might re-export the goods within a fortnight from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in giving mis-description of the goods, such findings having been passed on appreciation of the entire facts involved herein, there is no scope of interference with such findings of fact. It appears from the order of the Customs authority that in paragraphs 27 and 28 of the show cause notice, sufficient indications have been given as regards the outcome of the overseas enquiry through departmental source. Although documents were not given to the petitioners as regards the investigation done by such Authority, the initial burden was upon the petitioners to show bona fide mistake on the part of their exporter. Therefore, unless sufficient materials are placed by the petitioners showing that it was a mistake on the part of the foreign exporter to send wrong item and that the conclusion of the overseas enquiry was wrong, the Customs Authority had no liability to disclose their materials. The position would have been different if the initial onus was upon the Customs Authority to prove mala fide intention of the petitioners and in such a case, it could be legitimately argued by the petitioners that in the absence of disclosure of documents they were unable to controvert the veracity of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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