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Cus – Contention that SCN was issued beyond prescribed limitation and O-I-O was not passed within prescribed limitation, is not sufficient to invoke writ jurisdiction: HC

2019-TIOL-1791-HC-MAD-CUS

IN THE HIGH COURT OF MADRAS

WA No.2457 of 2019
CMP No.16132 of 2019

M/s SHRIWIN SHIPPING AND LOGISTICS
DOOR NO.76/80, MOORE STREET
CHENNAI – 600001

Vs

COMMISSIONER OF CUSTOMS
CHENNAI-VIII COMMISSIONERATE
NO 60, RAJAJI SALAI, CUSTOM HOUSE
CHENNAI – 600001

Vineet Kothari & C V Karthikeyan, JJ

Dated: August 02, 2019

Appellant Rep by: Mr T Mohan for M/s S Baskaran
Respondent Rep by: 
M/s Syed Nurullah Sheriff, Standing Counsel

Cus – This appeal has been filed against the order dated 28.06.2019 wherein the Single Judge dismissed the writ petition on the ground that the petitioner has an alternate remedy – When the petitioner has an alternative remedy under the provisions of the Act itself, writ jurisdiction cannot be normally invoked unless the issues like patent lack of jurisdiction, validity of Acts and Rules are involved – The contention of petitioner that the SCN was issued beyond the prescribed limitation and the O-I-O was not passed within the prescribed limitation, is not sufficient at all to invoke writ jurisdiction – Such grounds can always be raised before the appellate forum provided under the Act – Therefore, court is not inclined to entertain the present writ appeal – As far as constitution of Bench of Tribunal is concerned, the petitioner is free to approach the appropriate authority for proper constitution of Tribunal in an effective manner at Chennai: HC

Writ appeal dismissed

JUDGEMENT

Per: Dr Vineet Kothari:

This appeal has been filed against the order dated 28.06.2019 in W.P.No.15544 of 2019. The learned Single Judge dismissed the writ petition on the ground that the petitioner has an alternate remedy. The operative portion of the order passed by the learned Single Judge is quoted below for ready reference.

“(a). It is held that the impugned order of respondent being order dated 23.05.2019 bearing reference order-in-original No.69097/2019 is not vitiated by violation of 90 days time frame either under Regulation 17(5) of CBLR 2018 or under Regulation 20(5) of CBLR 2013;

(b) All other questions pertaining to impugned order and challenge to the same are left open;

(c) It is open to the writ petitioner to file an appeal under Section 129A(1) of the Customs Act, 1962, to CESTAT against impugned order;

(d) If writ petitioner chooses to avail alternate remedy and file an appeal to CESTAT, it is open to writ petitioner to seek condonation of delay as well as exclusion of time spent in this writ petition in the light of Section 14 of the Limitation Act, and if writ petitioner chooses to do so, CESTAT shall decide such applications on its own merit;

(e) Subject to delay condonation application and application if any seeking exclusion of time under Section 14 of the Limitation Act, if writ petitioner chooses alternate remedy, CESTAT shall decide the appeal on merits by examining all grounds and questions except violation of Regulation 17(5) of CBLR 2018 and Regulation 20(5) of CBLR 2013 which has been decided by this Court in instant order and dispose of the appeal as expeditiously as possible.

(f) Considering the importance of time frames in such matters, this Court requests the Tribunal, ie., CESTAT to dispose of the appeal as expeditiously as possible and in any event, within a time frame of three months from the date on which the appeal is filed, if it is filed.”

2. Learned counsel for the appellant urged before us that the said Tribunal before which the appeal now lies, under the provisions of Section 129A of the Act, is not presently working. However, later on, upon instructions, he submitted that some temporary arrangements have been made and a single member bench is presently working in Chennai. Learned counsel appearing for the Central Government also submits that presently a single member Bench is working.

3. Having heard the learned counsel for both the parties, we are of the clear opinion that the writ appeal, in such circumstances, cannot be entertained. When the appellant has an alternative remedy under the provisions of the Act itself, writ jurisdiction cannot be normally invoked unless the issues like patent lack of jurisdiction, validity of Acts and Rules etc., are involved. The contention of the learned counsel for the appellant that the show cause notice was issued beyond the prescribed limitation and the Order-in-Original was not passed within the prescribed limitation, is not sufficient at all to invoke writ jurisdiction. Such grounds can always be raised before the appellate forum provided under the Act.

4. Therefore, we are not inclined to entertain the present writ appeal. As far as the constitution of the Bench of Tribunal is concerned, the appellant is free to approach the appropriate authority or the Centra Government itself for proper constitution of the Tribunalin an effective manner at Chennai.

5. With the above observations, the writ appeal is dismissed. If any appeal is filed by the appellant before the Tribunal within a period of one month from this date, the Tribunal may decide the same on merits without objecting to the limitation and without being influenced by the observations made by the learned Single Judge. No costs. Consequently, the connected miscellaneous petition is also dismissed.

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