2023-TIOL-52-SC-CUS
Yamal Manojbhai Vs UoI
Cus - It is the case of the respondent that petitioner had tried to smuggle high value goods, mainly watches through the green channel entrance, in order to escape from paying duty on the same - Since the petitioner appeared to have committed offences under Sections 132 and 135 of the Customs act, he was arrested on 05.10.2022 - After the arrest, the petitioner herein then filed the present writ petition, wherein he sought for the issuance of directions for permission of home cooked food being granted to him - An ex-parte order dated 20.02.2023 was passed by this Court, wherein the Commissioner of Customs was directed to issue a show-cause notice to the petitioner, to initiate the proceedings - However, vide order dated 20.02.2023, the said ex-parte order was recalled - It was pointed out that conflict between the two High Court judgments of Bombay and Delhi High Court, if left unnoticed, has the potential to cause great harm to accused persons charged under the Customs Act, and deprive them of the power to invoke the remedy of settlement-It was held by the High Court of Bombay that if an accused is caught within the customs area, the bar on Section 127 of the Customs Act on goods mentioned under Section 123 of the same Act is redundant, and the accused is entitled to the remedy of settlement - Delhi High Court, while the settlement application of the petitioner was deemed to be maintainable, however, in paragraph 10 of the said judgment, a passing reference was made by the court stating that the goods found on the person of the petitioner, since they did not find mention under Section 123 of the Customs Act, were not barred by Section 127 of the same Act -Preliminary objection raised is that since the original relief sought for was limited to the grant of providing home cooked meals to undertrial prisoners, this court is not the appropriate forum to decide on the present question of law and resolve the conflict between the two High Court judgments.
Held:
Per: Krishna Murari
+ Where similarly situated persons are becoming victim to differential outcomes, this court must clarify such an ambiguity, by resolving the conflict between the two sets of judgments, to ensure that the mischief caused by the conflicting views is erased, and the certainty in law is restored - Preliminary objection regarding maintainability of the petition is, therefore, rejected: Supreme Court
+ In the present case at hand, the petitioner herein was caught with the impugned goods within the customs area. In such a scenario, where the impugned goods are found on the person of the accused and within the customs area, any chance of the accused being innocent becomes an impossibility, since the illegal act is caught in the heat of the crime -Since the discharge of burden proof, rather, the question of burden of proof itself becomes redundant in cases of seizures within the customs area, by default, the provision that mandates such a task also becomes redundant. In light of the abovementioned discussion therefore, in cases of seizure within the customs area, Section 123 of the Customs Act cannot apply and hence, the decision in the Suresh Judgement ( 2011 (267) E.L.T. 487 (Bom.) ) [upheld by Supreme Court by its order dated 03.08.2011] passed by the High Court of Judicature at Bombay states the correct position of law. [para 29, 30]
+If we were to accept the proposition that a non-declaration under Section 77 of the Customs Act would automatically bar the incoming passenger from availing the benefit of settlement, in light of our observation that an entry through the green channel mode implies a declaration of "Nil" goods under Section 77 of the Act, the provision of settlement would become irrelevant and defunct, since no accused would ever be able to avail the benefits of settlement. [para 37]
+ We see no reason as to why such a person cannot opt for a statutory remedy of settlement, and therefore reject the objection of the respondents in this regard. [para 38]
+ Since a show cause notice has already been issued, if an application of settlement is filed by the petitioner, the same shall be dealt with by the Settlement Commission on its own merits - Petition disposed of. [para 43, 45]
Per: Sanjay Karol
+ It is well settled law that this Court has wide powers when the violation of fundamental rights is alleged under Article 32 of the Constitution. However, such intervention must be made on a case by case basis and only when a fundamental right question arises. [para 29]
+ The Petitioner approached this Court through Writ Petition No. 55/2023, praying only for the grant of a writ of mandamus for home cooked food for under trial prisoners. [para 32]
+ This approach taken by the Petitioner is unwarranted and undesirable if not malafide for not exhausting the appropriate alternative remedies. Under the garb of relief purportedly relating to fundamental rights, the relief sought in the instant IA, is statutory in nature under the Act i.e. for an application of settlement to be decided. [para 33]
+ Recourse to the fundamental right to approach this Court has to be permitted in cases where the fundamental rights of the Petitioner have been infringed. Herein, no such infringement is made out. No material has been brought on record displaying that the Customs Department has proceeded in a manner contravening the Constitutional mandate. [para 34]
+ Therefore, the present application is liable to be dismissed on maintainability. [para 35]
Conclusion:
In view of divergence of opinion, Registry is directed to place this matter before Hon'ble the Chief Justice of India for appropriate orders.
- Difference of opinion: SUPREME COURT OF INDIA
2023-TIOL-515-HC-KAR-CUS
Ozone Properties Pvt Ltd Vs Director Software Technology Parks of India
Cus /CX - Petitioner challenges the order passed by the Director of Software Technology Parks of India on 01.05.2015 and by which order the request of the petitioner to exit from the scheme was rejected.
Held: It is not in dispute that the petitioner was licenced as infrastructure service provider and as a result, it was entitled to certain benefits under Chapter - VI of Foreign Trade Policy - Objective of the clause 6.18 of Chapter - VI is to ensure that an entity which has taken some benefit in the form of importing capital goods without payment of duty, the said entity would not be entitled to exit from the scheme without making good the duties that it had availed of - Petitioner admittedly made an application seeking for exit from the scheme and it was its specific case that it had not imported any capital goods or procured any capital goods for setting up the software technology park, therefore, it is clear that it was not obliged to reimburse any amounts for exiting from the scheme - Clause relating to exit from the scheme does not entitle the authority to reject the application on the ground that the periodical performance report had not been furnished - Furnishing of periodic status report did not result in any monetary benefit to the petitioner and it was only procedural requirement which it had to comply - Moreover, mere non-compliance of a procedural requirement cannot prevent the petitioner from exiting from the scheme - Impugned order cannot be sustained and the same is, therefore, quashed - The authority is directed to permit the petitioner to exit from the scheme - Petition allowed: High Court [para 4, 7, 8, 12]
Cus /CX - Alternative remedy - Matter is pending before this Court since eight years and after a period of eight years, relegating the petitioner to avail the appellate remedy would neither be just, nor proper: High Court [para 11]
- Petition allowed: KARNATAKA HIGH COURT |
