Ritika Limited and Others vs Commissioner of Customs

Amitava Lala, J.—This writ petition is made by a Limited Company and three others. Affidavit of competency is also available in the record.

By making this writ petition the petitioner has asked for release of the confiscated goods in terms of the order dated 2nd August 2001 passed by the CEGAT (Customs, Excise and Gold (Control) Appellate Tribunal), Eastern Branch, Calcutta.

It appears to this Court that operative part of the order of the CEGAT is as follows:

After reading the above observations made by the Commissioner (Appeals), I do not find any infirmity in the same. He has also rightly observed that the smuggled nature of the non-notified items has to be proved by the Revenue by production of concrete evidence and not on the basis of assumption and presumption. As such, I find that by following the ratio of the Tribunal''s order, he has rightly set aside the order of the original adjudicating authority. Accordingly, I find that no merits are there in the Revenue''s appeals and the same are rejected. All the three appeals are disposed of in the above terms.

Dictated and pronounced in the open Court:

The jurisdiction of the CEGAT was invoked by the Customs Authority against an order passed by the Commissioner of Customs (Appeal). It appears from such order. The original order was reversed by the Commissioner of Customs (Appeal) by holding that there is no positive evidence to prove the goods are smuggled nature of goods. Therefore, the goods in question have to be released. The last paragraph of such order is as follows:

I am, therefore, inclined to all the appeal(s) with consequential relief to the appeals. I find that not only the Commissioner of Customs (Appeal) observed that goods in question have to be released but allowed the appeals with consequential relief.

Therefore, according to the petitioners, the consequential relief is release of the goods which has to be made by such authority following the order of the Commissioner of Customs (Appeal). The respondents contended that such order is merged with the order of the CEGAT. CEGAT rejected the appeal without any consequential relief. Therefore, there is no doubt that consequential relief of releasing the confiscated goods will be followed but the same will be done on a proper application. I find that Superintendent of Customs (T and R Branch, West Bengal, Calcutta) was twice informed by the concerned Solicitors and Advocates of the petitioners under letters dated 7th September 2001 and 14th December 2001.

Learned Counsel appearing for the petitioners contended that u/s 142 of the Customs Act, 1962 the authority has a right recover any amount following the procedure prescribed there under but as and when there the question of refund of any money or release of confiscated goods are concerned, the authorities are reluctantly taking technical points to frustrate the genuine claim of the parties. u/s 131 of the Customs Act, similar provision for making payment of governmental dues irrespective of pendency of the reference or appeal has been provided. Therefore, such type of action cannot be one way traffic.

u/s 129B of the said Act a provision has been made for the purpose of hearing the appeal by the Tribunal. Order of the Appellate Tribunal is final but liability of either of the parties is to be described under the order itself.

He referred a judgment, Commissioner of Income Tax Vs. Bansi Dhar and Sons, basically to establish that there is no alternative remedy available to the petitioners to get redressal of grievance. When all proceedings are complete even to the extent of Tribunal but following the order confiscated goods are not released, the improper exercise of the jurisdiction can be correct by the High Court by issuing appropriate writ under Articles 226 and 227 of the Constitution of India.

According further to him, in a judgment Sardar Gurcharan Singh Vs. Collector of Customs, this Court held that alternative remedy is not a bar to invoke writ jurisdiction of the Court under Article 226 of the Constitution of India. I find from the aforesaid judgment that when there is an order of the Tribunal in favour of the assessee there is no justification for the respondents to withhold the release of imported materials. As long as the order of Tribunal stands the respondent is bound to honour the same. However, in such case, the Court was pleased to hold that mere filing of an application of reference etc. cannot justify the respondents in not complying the order in respect of which the reference has been filed. But it is recorded there under that no authority has been cited by the Court to the contrary.

Mr. K. Banerjee, Learned Counsel, appearing for the respondents contended before this Court that ratio of such judgment cannot be applicable everywhere because the same is per in curium. He has drawn my attention to paragraph 18 of such judgment and said that respondents have not shown any alternative remedy available to the petitioners and in belated stage when the affidavits are complete the alternative remedy was held to be no bar. However, in the instant case I find that there is a rule i.e. Rule 41 where under the power is given the parties to make such application for release of the articles to the CEGAT. Mere passing an order by the Tribunal, ipso facto, cannot give rise to the claim of the petitioners unless and until an application is made in compliance with such Rule. The petitioners in reply, contended that since the appeal has been preferred from an order of the Commissioner of Customs (Appeal) where under the same is allowed with consequential relief there is no necessity of making such application. Such order is merged with the order of the Tribunal, therefore, when the order of such Commissioner has been upheld by the Tribunal automatically the petitioners are entitled to the benefit the consequential relief under such order. Apart from that two letters have been written by the petitioner to the Superintendent of Customs.

I do not think that this is a proper way to deal with the matter. A reference application has already been made by the authority before this Court within the prescribed time which is now pending before the appropriate Bench. Such reference is arising out of an order passed by the Tribunal. It is true that making of such reference cannot automatically operate as stay. But similarly it is also true that when a Rule is provided for the purpose of giving benefit under the law why such Rule will not be followed is not known to this Court. It is also true that alternative remedy is no bar. But such alternative remedy will be sparingly utilised when the circumstances are such that passing an order under high prerogative writ is obvious. An application should have been made under the prescribed Rule. But instead of applying before the authority under such Rule, writ jurisdiction has been invoked. This is also not a case where the matter is pending before the Court for a considerable period and parties have exchanged their affidavits. The question has been raised at the threshold. Thus I do not find any reason as to why a proper application will not be made for release of the goods under Rule 41 of the prevailing Rules.

Hence, I do not want to interfere with the same. Writ petition is accordingly, dismissed. No order is passed as to costs. However, this order will not prevent the petitioner from making any application under Rule 41 of the relevant Rules before CEGAT to get the redressal of grievance as early as possible and if such application is made the same will not be treated as hit by principles of res judicata or will be treated to be barred by law of limitation, if any.

Xeroxed certified copies of this judgment will be supplied to the parties within fortnight days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.

All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.