M/S AMBRANE INDIA PVT LTD v. UNION OF INDIA & ANR.

1. This writ petition has been preferred with the following prayers:- D.N. PATEL, Chief Justice (Oral) Proceedings of the matter have been conducted through video conferencing. “(a) issue writ of certiorari or any other appropriate writ, order or direction while setting aside the Order in Original dated 30.6.2020 and remand the matter back to Respondent No. 2 while directing Respondent No. 2 to permit the Petitioner to file its detailed reply duly supported by documents and decide the show cause notice 31.7.2019 afresh after giving opportunity of hearing to the Petitioner; (b) pass any further order(s) as may be deemed fit and necessary in the facts and circumstances of the instant case. It is prayed accordingly.” 2020:DHC:3080-DB

2. Looking to the facts and circumstances of the case, it appears from this writ petition that a detailed Show Cause Notice dated 31st July, 2019 (Annexure P-5 to the memo of this petition) was issued to the petitioner for the alleged breach of the Customs Act, 1962 and the Notification referred to in the Show Cause Notice. Thereafter Show Cause Notice was adjudicated and Order-in-Original was passed on 30th June, 2020. (Annexure P-7 to the memo of this petition).

3. In this writ petition, the petitioner has challenged an Order-in-Original dated 30th June, 2020, which is an appealable order under Section 129-A of the Customs Act, 1962

4. As an efficacious alternative remedy is available to the petitioner, we are not inclined to go into the fine niceties of the facts, which have been narrated by the counsel for the petitioner. Counsel for the respondents has also taken this Court through paragraphs 1, 2, 5, and 21 of the Order-in- Original dated 30th June, 2020 (Annexure P-7)..

5. Learned counsel for the petitioner submitted that without giving a hearing to the petitioner, the Order-in-Original dated 30.06.2020 was passed. He further submitted that the notice of hearing was never served upon the petitioner. Moreover, in absence of any reply filed by the petitioner to the show cause notice, there will be nothing to argue before the appellate authority, being the Customs Excise and Service Tax Appellate Tribunal. Hence, instead of preferring an appeal, they have preferred this writ petition.

6. We are not inclined to accept the aforesaid submissions for the following reasons:a. The Order-in-Original dated 30th June, 2020 is an appealable order under Section 129-A of the Customs Act, 1962, whereby an efficacious remedy is available to the petitioner. The contentions sought to be taken by the petitioner in this writ petition can also be taken in appeal filed against the Order-in-Original. b. In Commissioner of Income Tax and Ors. v. Chhabil Dass Agarwal,

“13. In Nivedita Sharma v. Cellular Operators Assn. of India [(2011) 14 SCC 337: (2012) 4 SCC (Civ) 947],, the Hon’ble Supreme Court has held as under: this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp. 343-45, paras 12-14)

14. In Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536] B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) ‘77. … So far as the jurisdiction of the High Court under Article 226—or for that matter, the jurisdiction of this Court under Article 32—is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment c. It has been held in judgment of Hon’ble the Supreme Court in Assistant Commissioner (CT) LTU v. Glaxo Smith Kline Consumer Health Care Ltd.,......” (emphasis supplied)

“11. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent?: As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar and also Nivedita Sharma v. Cellular Operators Association of India). In Thansingh Nathmal v. Superintendent of Taxes, Dhubri, the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person d. It also appears from the facts of the case that....." even though Show Cause Notice dated 31st July, 2019 (Annexure P-5) was served upon the petitioner, no reply has been filed. Paragraph 20 “ of the Order-in-Original reads as under:-

20.

(i) As per record, the noticee was informed vide office letter C. No. VIII/ DLI/CusPrev/Adj/EPC/Roh/Ambrane/ 86/2019 dated 03.09.2019 that the personal hearing was fixed for 19.09.2019 in the instant case but neither the noticee nor any authorised representative on behalf of the noticee appeared for personal hearing.

(ii) The noticee was informed vide office letter C. No.

VIII/DLI/CusPrev/Adj/EPC/Roh/Ambrane/86/2019 dated 23.09.2019 that the personal hearing was again fixed for 10.10.2019 in the instant case but neither the noticee nor any authorised representative on behalf of the noticee appeared for personal hearing.