Advocates:
['HARI RADHAKRISHNAN', '', 'G DERRICK SAM', 'G VIJAYABALAN', 'N AHILANDEESWARI', 'V SUNDARESWARAN ST COUNSEL', '', 'M/S A P SRINIVAS SSC', 'R MEMO DT']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 01.07.2022

CORAM

THE HONOURABLE DR. JUSTICE ANITA SUMANTH

W.P.No.27973 of 2019

&

W.M.P.No.27576 of 2019

P.Karthikeyan

... Petitioner

Vs

1. The Joint Commissioner of Customs (CCO),

No.1, Williams Road,

Cantonment,

Tiruchirapalli – 620 001.

2. The Additional Commissioner of Customs,

6/7, A.T.D. Street, Race Course Road,

Coimbatore – 641 018.

... Respondents

PRAYER: Writ Petitions filed under Article 226 of the

Constitution of India praying to issue a Writ of Certiorari,

calling for the records of the impugned Order-in-Original

No.TCP-CUS-PRV-JTC-014-19 dated 28.06.2019 passed by the 1^st

respondent in C.No.VIII/10/47/2018-Cus Adj. and quash the same.

For Petitioner

:

Mr.Hari Radhakrishnan

For Respondents

:

Mr.A.P.Srinivas

Senior Standing Counsel

ORDER

The challenge is to an order in original dated 28.06.2019,

where under the respondents have imposed penalty upon the

petitioner in terms of Sections 112 & 114AA of the 'Customs Act,

1962' ('Act') (for brevity 'CA Act, 1962').

2. The petitioner had suffered an order-in-original that

had come to be challenged by way of writ petitions in

W.P.Nos.33741 & 33742 of 2016. Vide order dated 30.09.2016, a

learned Single Judge of this Hon'ble Court rejected the writ

petitions on the ground that there was an efficacious statutory

remedy that was available as against which the petitioner filed

writ appeal Nos.130 & 131 of 2017.

3. The short point raised therein was that there had been

violation of principles of natural justice insofar as the

petitioner alleged that it had not been afforded an opportunity

to cross-examine certain witnesses. A Division Bench (of which I

was a part) took the view that the petitioner should be granted

such opportunity and to that extent modified the order of the

Learned Single Judge as well as that of the Adjudicating

Authority, rejecting the prayer for cross-examination of the

Official Central Revenue Control Laboratory.

4. A time frame of two months were granted for the above

purpose, and thereafter orders were directed to be passed, in

accordance with law, based on the result of the cross-

examination. The impugned order-in-original dated 28.06.2019 was

not set aside by the order in writ appeals but had been

confirmed, subject to the result of the opportunity to cross-

examine granted.

5. The petitioner was thereafter permitted to cross-examine

the chemical examiner and the result/effect of the cross-

examination taken note of by the original authority in the

impugned order dated 28.06.2019. The authority arrives at a

conclusion that the cross-examination has not brought out any

material that would support the stand of the petitioner and

persuade him to take a view differently from that taken by him

in the original proceeding. I am of the considered view that the

procedure followed by the authority is appropriate and calls

for/warrants, no interference.

6. The challenge to the imposition of the penalty is

restricted to the penalty under Section 114 AA of the CA Act,

1962. For this purpose, learned Counsel for the petitioner

relies upon an extract of the 27^th Report of the Standing

Committee on Finance(2005-2006) that sets out the reasons for

the insertion of Section 114 A of the aforesaid Act as follows:-

“63. The information furnished by the Ministry

states as follows on the proposed provision:

“Section 114 provides for penalty for importer

exportation of goods. However, there have been

instances where export was on paper only and no

goods had ever crossed the border. Such serious

manipulators could escape penal action even when no

goods were actually exported. The lacuana has an

added dimension because of various export incentive

schemes. To provide for penalty in such cases of