IMPORTANT POINT
The failure to appeal against prior adjudicating orders bars subsequent challenges to recovery notices issued under the Customs Act.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. J. Rohmingthanga, the learned counsel appearing on behalf of the Appellant and Mr. J.L. Tochhawng, the learned Standing Counsel, Custom Department appearing on behalf of the respondent Nos.1, 2 & 3.

2. This intra-Court Appeal is directed against the judgment and order dated 10.05.2024 passed by the learned Single Judge in WP(C) No. 87/2023 whereby the writ petition filed by the petitioner who is the Appellant in the instant proceedings was dismissed. For deciding the intra-Court Appeal, it is relevant to take note of certain facts which are narrated infra.

3. The Appellant herein claims to be engaged in the business of mobile phones etc. under the trade name and style of M/s Rb. H General Enterprises at Upper Bazar, Dawrpui, Aizawl. During the relevant period, i.e. from 2011 to 2014 while the Appellant was conducting his business, he purchased mobile phones of different make, namely, FLY mobile phones and Lemon mobile phones from distributors in Assam, namely, Jorhat Auto Accessories, H.O., Jhana Road, Jorhat-785001 and Unique Mercantile, Janpath Lane, Ulubari, Guwahati. These goods which were purchased by the Appellant were seized by the respondent No. 3 on 22.04.2012 and 10.05.2012 while in transit via road from Assam to Aizawl, Mizoram in Byrnihat-Ri-Bhoi, Meghalaya and Mawiong, Meghalaya respectively. Pursuant thereto, the Appellant was issued two separate show cause notices dated 17.10.2012 and 02.11.2012 respectively under Section 124 of the Customs Act, 1962 (for short, ‘the Act of 1962’). The appellant, upon receipt of the said show cause notices, replied to the same stating inter-alia that the mobile phones which were seized were purchased from Jorhat Auto Accessories, Guwahati, Assam complying all the formalities and by paying requisite taxes to the Taxation Department, Government of Mizoram and that the Appellant was no way involved in importing of the mobiles.

4. Be that as it may, two separate orders were passed by the Additional Commissioner of the Office of the Commissioner of Customs (Preventive), North Eastern Region dated 27.05.2013 and 04.06.2013. By the order dated 27.05.2013, the Assistant Commissioner, i.e. the respondent No. 3 herein had ordered for confiscation of the mobile handsets valued at Rs.26,33,378/-and the Appellant was given an option to pay a fine of Rs.2,00,000/- plus appropriate custom duty as leviable in lieu of the confiscation as provided for under the provision of Section 125 of the Act of 1962. In addition to that, an amount of Rs.1,00,000/-was imposed as penalty. It was further observed in the said order that the Appellant had deposited an amount of Rs.3,95,007/-and there was a direction to apportion/adjust the said security deposit towards fine and penalty so imposed and duty leviable in terms with the order dated 27.05.2013 and bond was directed to be released upon realization of the fine, penalty and the duty over other charges as leviable. By the order dated 04.06.2013, the respondent No. 3 confiscated the mobile handsets of foreign origin valued at Rs.45,01,453/-and gave the Appellant an option to pay a fine of Rs.4,00,000/-plus appropriate custom duty as leviable in lieu of confiscation under Section 125 of the Act of 1962. In addition to that, penalty of Rs.1,00,000/-was also imposed upon the Appellant. It is further observed that the Appellant had deposited an amount of Rs.6,75,218/-as security deposit which was directed to be apportioned/adjusted towards the fine and penalty so imposed and duty leviable in terms with the order dated 04.06.2013.

5. The records reveal that pursuant thereto, two separate orders were passed on 15.05.2014 whereby the Appellant was refunded an amount of Rs.59,746/-and Rs.1,14,944/-.

6. Subsequent thereto, on 22.08.2017, a recovery notice was issued whereby the amounts payable against the two adjudicating orders dated 27.05.2013 and 04.06.2013 after making adjustment from the security deposit already paid, was ad