1961 (12) TMI 90 - HC - Central Excise

Court allows Article 226 petition despite alternative remedy, fines; clarifies penalty jurisdiction. Show-cause notice inadequate.

The court held that despite the availability of an alternative remedy, the writ petition under Article 226 was maintainable due to the heavy fines imposed ... - Issues Involved:1. Maintainability of the writ petition under Article 226 despite the availability of an alternative remedy.2. Violation of principles of natural justice due to the absence of an oral hearing.3. Jurisdiction to impose a penalty under Section 167(8) of the Sea Customs Act.4. Adequacy of the show-cause notice in relation to the imposition of a penalty under Section 167(3).5. Legality of the confiscation of the boat under Section 168 of the Sea Customs Act.Detailed Analysis:1. Maintainability of the Writ Petition:The Additional Government Pleader raised a preliminary objection regarding the maintainability of the writ petition, arguing that an appeal to the Central Board of Revenue was an adequate and appropriate remedy. The Court held that the mere existence of an alternative remedy does not bar the exercise of jurisdiction under Article 226. The petitioner argued that the fines imposed were heavy, making it difficult to comply with the condition precedent for filing an appeal, and that an appeal to Delhi would be expensive and ineffective. The Court was satisfied that the alternative remedy was not effective in this case and did not uphold the preliminary objection.2. Violation of Principles of Natural Justice:The petitioner contended that the order was opposed to the principles of natural justice as he was not given an opportunity to make oral representations through his counsel. The Court noted that the request for a personal hearing was made after the time allowed in the show-cause notice had expired and that the Collector was not bound to comply with this request. The Court found no substance in this contention, stating that the refusal to grant a personal hearing was not unreasonable under the circumstances.3. Jurisdiction to Impose Penalty under Section 167(8):The petitioner argued that the respondent had no jurisdiction to impose a penalty under Section 167(8) as the provision relates to the importation or exportation of prohibited or restricted goods, which was not the case here. The Court agreed, stating that the contravention related to the landing of goods at an undeclared port, which falls under Section 167(2) and (3). The mention of Section 167(8) in the order was an inadvertent mistake for Section 167(3). The Court accepted this explanation and held that the jurisdiction of the Collector was not vitiated by this error.4. Adequacy of the Show-Cause Notice:The petitioner contended that the show-cause notice did not ask him to show cause against the imposition of any penalty under Section 167(3). The Court agreed, stating that the notice must not only mention the statutory provisions but also the penalty proposed to be imposed. The Court found that real prejudice was caused to the petitioner by not being called upon to show cause against the penalty under Section 167(3). The imposition of a penalty of Rs. 500 was held to be illegal as it was not preceded by a proper show-cause notice.5. Legality of the Confiscation of the Boat:The petitioner argued that the confiscation of the boat under Section 168 was an unnecessarily deterrent punishment and that the Collector failed to consider mitigating circumstances. The Court noted that the absence of a declared port in the vicinity should have been taken into account in assessing the degree of culpability. The failure to consider these circumstances rendered the penalty of confiscation an error apparent on the face of the record. The Court quashed the order of confiscation on this ground.Conclusion:The petition was allowed in part. A writ of certiorari was issued quashing the part of the order imposing a penalty of Rs. 500 on the petitioner under Section 167(8) and confiscating the boat under Section 168 of the Sea Customs Act. There was no order as to costs.