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Judgment
Indra Prasanna Mukerji, J.—This writ challenges the adjudication order of the Commissioner of Customs (Port), Kolkata dated 21st July 2014. The challenge to this order is made by a Customs Clearing House Agent, now known as a Customs House Broker. The primary ground of attack is that the writ petitioner was not issued a show cause notice.
The other ground is that there was no justification for imposing a penalty of Rs. 1 lakh on the writ petitioner.
A quantity of yellow peas was imported by the importer. The vessel anchored at the Sagar anchorage. From this anchorage the goods were brought in barges to the Khiddipur dock. Under the law, the goods were dutiable. But the duty in respect of those goods had been exempted by a Central notification. Permission was granted to the importer to unload 1000 MT. of the goods at or around the Diamond Harbour area. The case against the writ petitioner related to unloading of a part of those goods in the Diamond Harbour area and for proper transportation of the rest from the anchorage to the Kolkata port. The customs department had fixed responsibility on inter alia the writ petitioner for an alleged breach of its duty in unloading a part of the goods and transporting the rest from the anchorage to Kolkata. They relied on a guarantee furnished by the importer, which bears the writ petitioner''s signature.
According to Mr. Choudhury, learned Advocate for the petitioner, the guarantee was of the importer only. His client had only the responsibility of unloading the goods in Kolkata. There was no breach of responsibility on their part. They had been proceeded against unnecessarily.
Mr. Saraf, learned Counsel for the Revenue, showed me portions of the adjudication order where it was recorded that representatives of the petitioner had appeared. He submitted that issuance of a formal show cause notice had been waived by the writ petitioner''s representatives. According to Mr. Choudhury, there was no such waiver and that the representatives of the writ petitioner had just come to meet the Commissioner.
Prima facie, I find nothing in the records to suggest that the writ petitioner was interested in issuance of a formal show cause notice. There was not a single letter inquiring as to why the show cause notice had not been issued. Even after the representatives of the writ petitioner allegedly met the customs officials, there was no correspondence on record making a complaint that the adjudication process was continuing without issuance of a show cause notice.
Hence prima facie I come to the finding that issuance of the show cause notice had been expressly or impliedly waived by the writ petitioner.
If that is the situation then there is no element of natural justice involved by which the jurisdiction of this Court under Article 226 of the Constitution can be invoked.
Whether the writ petitioners furnished a guarantee or not, whether they had any responsibility in the unloading of the 1000 MT cargo at Diamond Harbour area or not, whether they had responsibility in the safe passage to Kolkata or not, has to be established upon proper evaluation of evidence.
In that view of the matter, this Court is not minded to entertain the writ application and relegates the writ petitioner to the appeal under the law before the Customs Excise and Service Tax Appellate Tribunal. All points will be open before the Tribunal. If the Tribunal thinks that all or any factual questions should be remanded to the Commissioner, it would be at liberty to do so.
To enable the writ petitioner to approach the Tribunal and seek interim orders there, no coercive steps should be taken by the respondents for recovery of the penalty of Rs. 1 lakh from the writ petitioner till 11th September 2014 or until further orders in this behalf are passed by the Tribunal, whichever is earlier. If an application for stay is made before the Tribunal it will decide the same within four weeks of filing thereof.
Affidavits were not filed as all the papers were before the Court.
This writ application is disposed of by this order. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.