Cus - Rule is to prefer an appeal and entertaining a writ is only an exception: High Court
By TIOL News Service
CHENNAI, SEPT 18, 2018: AGAINST an o-in-a passed by the Commissioner(A) confirming the o-in-o, the petitioner is before the Madras High Court.
The grievance of the writ petitioner is that they are a regular importer of "Carbonless Paper Black Image" and the same is classifiable under customs tariff heading 4809; that they had claimed the benefit of serial number 553 of Notification No. 46/2011-Cus dated 01.06.2011, which provided for a concessional rate of basic customs duty for all goods classifiable under heading 480830 to 480990. The benefit of exemption notification was extended to the goods at the time of import and the goods were accordingly cleared by the Proper Officer of Customs, for home consumption.
However, pursuant to the proceedings initiated, the benefit was denied by the original authority as well as the first appellate authority.
This benefit, the petitioner claims, has been withdrawn mistakenly and, therefore, they are constrained to move the present writ petition. It is also contended that withdrawal of the exemption granted is improper and not in accordance with the agreements entered into between the Countries.
The counsel for the respondent Revenue submitted that the benefit of the notification has been withdrawn by way of a decision and not by a mistake; that the writ petitioner is bound to exhaust the statutory remedies available under the provisions of the Customs Act.
The High Court considered the submissions and inter alia observed -
++ This Court is of an opinion that the Appellate Tribunal constituted under the said Act is empowered to adjudicate all the legal grounds raised by the writ petitioner in the present writ petition and also the factual disputes.
++ Usurping the powers of such Appellate Tribunals created under the Act cannot be done in a routine manner by the Constitutional Courts.
++ Intermittent interventions frequently by the Courts will create unnecessary complications.
++ It is always preferable that the aggrieved persons must be allowed to exhaust the remedies and the institutions created under the statutes shall be allowed to adjudicate the matters by following the procedures and take a decision in accordance with law.
++ Unnecessary or routine invasion into the statutory powers of the competent authorities under a statute should be restrained by the Constitutional Courts. Frequent or unnecessary invasions in the executive power will defeat the constitutional perspectives enshrined under the Constitution of India.
++ If the High Courts started interfering with such Appellate powers without any valid and substantiated reasons, then the very purpose and object of the statute and provision of appeal under the statute became an empty formality.
++ While entertaining a writ petition as narrated by the Apex Court, the provision of efficacious alternative remedy under the statute also to be considered.
++ Institutional respects are to be maintained by the constitutional Courts. Whenever there is a provision for an appeal under the statute, without exhausting the remedies available under the statute, no writ petition can be entertained in a routine manner.
++ Only on exceptional circumstances, the remedy of appeal can be waived, if there is a gross injustice or if there is a violation of fundamental rights ensured under the Constitution of India. Otherwise, all the aggrieved persons from and out of the order passed by the original authority is bound to approach the Appellate Authority.
++ The Constitutional Courts cannot make an appeal provision as an empty formality. Every Appellate Authority created under the statute to be trusted in normal circumstances unless there is a specific allegation, which is substantiated in a writ proceedings.
++ Rule is to prefer an appeal and entertaining a writ is only an exception. This being the legal principles to be followed, this Court cannot entertain the writ petitions in a routine manner by waiving the remedy of appeal provided under the statute.
Concluding that the issues raised by the writ petitioner in the writ petition cannot be adjudicated as the Appellate Tribunal is empowered to adjudicate all such disputes, the Petition was disposed of.
Following are some of the case laws the High Court relied upon while arriving at the aforementioned decision.
+ Madras Bar Association - 2014-TIOL-82-SC-MISC-CB
+ Chhabil Dass Agarwal - 2013-TIOL-40-SC-IT
+ Gujarat Ambuja Cement Ltd. - 2005-TIOL-96-SC-CT-LB
+ K.S. Rashid and Sons - 2002-TIOL-1280-SC-IT-CB
+ M/s K.S. Venkataraman and Co. (P) Ltd. - 2002-TIOL-890-SC-CT-CB
+ M/s. Short Brothers (P) Ltd. - 2002-TIOL-1903-SC-IT-LB
(See 2018-TIOL-1923-HC-MAD-CUS)
