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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
NELSON SAILO, J.
Robert Hauzel Proprietor of M/s Rb. H General Enterprises – Appellant
Versus
Union of India and Ors. – Respondents
WP(C) 87 of 2023
Decided on : 29-04-2024
Customs Act - Recovery Notice - Section 142 - Summary of Acts and Sections: The court discussed the provisions of the Customs Act, 1962, particularly Sections 111(b), (d), 119, 125, 128, and 142. The court emphasized the option given to the petitioner to pay fine and appropriate Customs Duty in lieu of confiscation under Section 125. The court also highlighted the statutory remedy available to the petitioner under Section 128 for filing an appeal before the Appellate Authority.
Fact of the Case:
The petitioner challenged the Recovery Notice seeking payment of Customs Duty after the confiscation of mobile handsets. The petitioner had earlier paid redemption fine and penalty and received a refund of the excess amount paid. The petitioner claimed want of proper legal advice and financial constraints due to the Covid-19 pandemic as reasons for not approaching the statutory Appellate Authority under the Customs Act.
Finding of the Court:
The court found that the petitioner was given the option to pay fine and appropriate Customs Duty in lieu of confiscation under the Orders-in-Original. The court also noted that the petitioner failed to approach the Appellate Authority despite the liberty given by the court in the earlier writ petition. The court dismissed the instant writ petition, emphasizing the availability of a statutory remedy under the Customs Act.
Issues: The issues involved whether the Recovery Notice was sustainable, the maintainability of the instant writ petition, and the justification for not approaching the Appellate Authority despite the liberty given by the court in the earlier writ petition.
Ratio Decidendi: The court held that the petitioner was given the option to pay fine and appropriate Customs Duty in lieu of confiscation under the Orders-in-Original. The court also emphasized the availability of a statutory remedy under the Customs Act and the failure of the petitioner to approach the Appellate Authority despite the liberty given by the court in the earlier writ petition.
Final Decision: The court dismissed the instant writ petition and vacated the interim order. The court found no merit in the writ petition and held that the remaining authorities cited by the parties were not necessary.
JUDGMENT :
Heard Mr. Jordan Rohmingthanga, learned counsel for the petitioner and Mr. Johny L. Tochhawng, learned counsel for the respondents.
[2.] This is the second time the petitioner is before this Court. The earlier writ petition being WP(C) No.54/2018 was disposed of vide Order dated 29.11.2018 after it was submitted to the Court that there is an Appellate Authority under the Customs Act, 1962 (Customs Act). Accordingly, the writ petition was closed by giving liberty to the petitioner to approach the Appellate Authority under the Customs Act with an observation that since there was specific time frame for filing an appeal, the petitioner may file an application for condonation of delay and the Appellate Authority should consider the same fairly. Be it stated herein that challenge made by the petitioner in that writ petition was the recovery notice dated 22.08.2017 and the letter dated 15.01.2018 by which the Assistant Commissioner, Customs Division, Aizawl (respondent No. 3) directed the petitioner to immediately deposit the amount due by disposing of the mobile handsets that were seized.
[3.] After the writ petition was closed in the above manner, the petitioner did not approach the appellate authority and instead, he has filed the instant writ petition. Reasons cited for not approaching the statutory Appellate Authority under the Customs Act by the petitioner is that it is due to want of proper legal advice coupled with precarious financial conditions due to lockdowns and restrictions imposed due to the Covid-19 pandemic.
[4.] By filing the instant writ petition, the petitioner has challenged the Recovery Notice dated 22.08.2017 and the subsequent reminders dated 17.12.2021, 21.02.2022 (not annexed in the writ petition), 23.05.2022, 30.06.2022 and 21.09.2022 by which the petitioner has been directed to pay the balance amount of Customs Duty amounting to Rs. 11,79,459/-(Rupees eleven lakhs seventy nine thousand four hundred fifty nine) only.
[5.] Brief facts of the case as projected by the petitioner is that in the course of his business he purchased a certain number of mobile phones of different make namely, FLY mobile phones and LEMON mobile phones from distributors in Assam. The same was seized by the respondent No. 3 on 22.04.2012 and on 10.05.2012 in Byrnihat-Ri-Bhoi and Mawiong, Meghalaya respectively while the goods were in transit by road from Assam to Aizawl. The value of the goods of the petitioner seized on 22.04.2012 was Rs. 26,33,377/-and those seized on 10.05.2012 was Rs. 45,01,453/-.
[6.] The petitioner thereafter applied for provisional release of the goods before the Customs Authority by submitting an application on 05.06.2012 and he was allowed to take possession of the goods on payment of security deposit amounting to Rs. 3,95,007/-and Rs. 6,75,218/-separately for the two (2) seizures and on executing of bond vide two (2) separate release orders both dated 19.06.2012 which was issued by the respondent No. 3.
[7.] Thereafter, the petitioner was issued two (2) separate Show Cause Notices dated 17.10.2012 and 02.11.2012 by the respondent No. 2 asking him to show case as to why the seized goods should not be confiscated under Section 11(b) and (d) and under Section 119 of the Customs Act and further, as to why the petitioner should not be penalized under Section 112(b) of the Customs Act. The petitioner submitted his written reply to the Show Cause Notice dated 02.11.2012 on 16.04.2013. The petitioner vide letter dated 02.04.2013 was then asked to appear before the Customs Authority concerned on 12th, 16th and 18th April, 2013 at the place and time mentioned in the said letter. Subsequently, the proceedings came to be disposed of vide two (2) separate Orders-in-Original dated 24.05.2013 (Annexure-10) and 03.06.2013 (Annexure-11) respectively. In the Order-in-Original dated 24.05.2013 passed by the Addl. Commissioner of Customs, the mobile handsets of foreign origin belonging to the petitioner valued Rs. 26,33,37
The main legal point established in the judgment is the availability of a statutory remedy under the Customs Act and the failure of the petitioner to approach the Appellate Authority despite the libe....
The failure to appeal against prior adjudicating orders bars subsequent challenges to recovery notices issued under the Customs Act.
A writ petition challenging seizure under the Customs Act may be considered non-maintainable if a related and previously adjudicated matter on jurisdictional grounds remains unresolved.
Order of Detention and seizure quashed - Absence of any proper opportunity to petitioner also, the civil liabilities of petitioner company demanding the huge amount of custom duty would be impermissi....
Show cause notices issued prior to 29.03.2018 must be adjudicated within one year from that date; otherwise, they lapse.
Denial of redemption options in cases of absolute confiscation is lawful when goods are prohibited under the Customs Act due to non-compliance with Minimum Import Prices.
(1) Personal interests of importers who made improper imports are pitted against interests of national economy and more particularly, interests of farmers. Imposition of penalty on such importers is ....
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