2015 (12) TMI 1696 - HC - Customs

Adjudication order quashed for failing mandatory retroactive check under Clause 16(a) and violating natural justice principles

Noble Import Pvt. Ltd. Versus Union of India

The AP HC held that the adjudication order passed without conducting a mandatory retroactive check under Clause 16(a) of Annexure-III to the 2009 Rules ... Import of Gold jewellery - preferential rate of duty - case of petitioner is that there is no doubt regarding the credibility of the declaration given by the exporter; the country of origin certificates also bear a specific certification from the concerned authorities in Indonesia to the effect that the declaration of the exporter, that the goods are of Indonesian Origin, is correct; therefore, the goods ought to have been cleared by granting exemption in terms of the exemption notification, and the Origin Rules; however the goods, imported by the petitioners under the relevant Bills of Entry, were not cleared for home consumption - the petitioner has an effective and efficacious alternative remedy of an appeal under Section 128 of the Customs Act, without availing which they had invoked the jurisdiction of this Court under Article 226 of the Constitution of India - Held that: - Alternative remedy, Not a bar for invoking the jurisdiction of the High Court under Article 226 of the Constitution - The existence of an alternative remedy is merely a factor to be considered, and would not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed - As the petitioners question the adjudication order on the grounds of violation of principles of natural justice, and that the 3rd respondent lacks jurisdiction to pass the adjudication order even before a retroactive check is conducted, we see no reason to relegate them, after having heard the matter elaborately on merits, to the alternate remedy of an appeal under the Customs Act. Does the third respondent lack jurisdiction to pass the adjudication order without a retroactive check being conducted? - Held that: - From a reading of Clause 16(b), it is evident that the requirement of obtaining information of the documents, relating to the origin of the imported goods in accordance with its domestic laws and regulations, is a preclude to the request for retroactive check in terms of Clause 16(a). If the documents, sought for by the competent authority, are furnished by the importer and, if the concerned authority is satisfied with it, then preferential tariff can be extended to the importer. If, on the other hand, the information, or the documents furnished, are found not to be satisfactory, then, in terms of Clause 16(a), a retroactive check can be conducted - It is only after a retroactive check is conducted, and the concerned authorities are satisfied that the Certificate of Origin cannot be accepted, are they entitled, thereafter, to pass an adjudication order under the Customs Act. Without conducting a retroactive check, in terms of Clause 16(a) of Annexure-III to the 2009 Rules, it was not open to the 3rd respondent to pass an adjudicating order. The impugned orders dated 30-10-2015, passed even before conducting a retroactive check in terms of Clause 16(a), are without jurisdiction. Was the adjudication order dated 30-11-2015 passed in violation of principles of natural justice? - Held that: - Reliance placed on documents, not made available to the assessee, violates principles of natural justice; and necessitates the impugned order being set aside on this ground also. - A person, against whom an order is passed, is entitled to a proper hearing which would include supply of the documents relied upon by the adjudicating authority. Only on knowing the contents of the documents, can he furnish an effective reply. Does the judgment in Mahadev Metaliks Pvt. Ltd. [2015 (12) TMI 476 - ANDHRA PRADESH HIGH COURT], to the extent imported goods were directed to be released on payment of 30% differential duty, constitute a binding precedent? - Held that: - On provisional assessment, the assessee can only be asked to deposit a sum not exceeding 20% of the provisional duty. In addition thereto, it is open to the concerned officer to call upon the petitioner to furnish such security or surety or both as he deems fit. While the 2011 Regulations disable the concerned authority from requiring deposit of a sum exceeding 20% of the provisional duty, the nature of the surety and the extent of the security to be furnished is, under Regulation 4, left to the discretion of the proper officer - If the order in Mahadev Metaliks Pvt. Ltd. constitutes a binding precedent, this Court would be required to refer the matter to a Full Bench for resolution of the issue, even if it were to disagree with the view taken in the said judgment, for it is well settled that when a bench of coordinate jurisdiction disagrees with another bench of coordinate jurisdiction, whether on the basis of “different arguments” or otherwise on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution of the issue rather than leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety, forms the basis of judicial procedure and it must be respected at all costs - If, on an analysis of Regulation 4, the said regulation was misconstrued, it would then not have been a ground for impugning the authority of the earlier judgment. It is only because Regulation 4 was not considered, despite it being brought to their notice, and was not preceded by an analysis of the said Regulation, and no reasons were assigned for issuing such a direction, does the judgment, in Mahadev Metaliks Pvt. Ltd., not constitute a precedent binding on a co-ordinate bench. Can an order, similar to that passed by the Supreme Court in “Commissioner of Customs v. M/s. Navashakti Industries Pvt. Ltd.” [2010 (5) TMI 592 - DELHI HIGH COURT], be passed in these writ petitions also? - Held that: - Exercise of the extraordinary jurisdiction, constitutionally conferred on the Supreme Court under Article 142(1) of the Constitution, can be of no guidance on the scope of Article 226 - It would be wholly inappropriate for us, therefore, to issue a direction, similar to that passed by the Supreme Court, with regards surety or security to be furnished by the assessee for release of the subject goods. The High Court cannot substitute its views for that of the authority on whom the statutory regulations confer discretion - Discretion conferred by statutory regulations, must be exercised in a rational and reasonable manner. The discretion conferred on the proper authority, under the 2011 Regulations, is not fettered by the C.B.E. & C. Circular dated 6-10-2015. We wish to make it clear that we have not expressed any opinion on the amount which the petitioner must be asked to deposit or the nature of surety or the extent of security which the petitioner should be called upon to furnish for release of the imported gold jewellery, as these are all matters in the discretion of the proper officer under Regulation 4 of the 2011 Regulations. Suffice it to direct the third respondent to release the imported goods, after exercising his discretion in terms of Regulations 2 and 4 of the 2011 Regulations and assigning reasons therefor, with utmost expedition and, in any event, not later than two (2) weeks from today. Petition disposed off - decided partly in favor of petitioner. Issues Involved:1. Alternative remedy and jurisdiction of the High Court under Article 226 of the Constitution.2. Jurisdiction of the third respondent to pass the adjudication order without a retroactive check.3. Violation of principles of natural justice in the adjudication order.4. Binding precedent of the judgment in Mahadev Metaliks Pvt. Ltd.5. Applicability of the Supreme Court's order in Commissioner of Customs v. M/s. Navashakti Industries Pvt. Ltd.6. Discretion conferred by statutory regulations and its exercise by the authority.7. Impact of the C.B.E. & C. Circular dated 6-10-2015 on the exercise of discretion.Detailed Analysis:I. Alternative remedy - Not a bar for invoking the jurisdiction of the High Court under Article 226 of the Constitution:The court acknowledged that while the existence of an alternative remedy is a factor to consider, it does not bar the High Court from exercising its jurisdiction under Article 226. The court emphasized that it can grant relief if there are no disputable questions of fact and the jurisdictional error is due to a misappreciation of the law and statutory provisions. The petitioners' claim of violation of natural justice and lack of jurisdiction by the third respondent justified the High Court's intervention.II. Jurisdiction of the third respondent to pass the adjudication order without a retroactive check:The court examined the 2009 Regulations, specifically Annexure-III, Clause 16(a), which mandates a retroactive check before passing an adjudication order. The third respondent's failure to conduct such a check rendered the adjudication order dated 30-10-2015 without jurisdiction. The court concluded that the proper procedure involves obtaining necessary documents from the importer and, if unsatisfactory, conducting a retroactive check before any adjudication.III. Violation of principles of natural justice:The court found that the adjudicating authority violated principles of natural justice by not providing the petitioners with the documents referred to in the adjudication order. The court reiterated that fairness requires the adjudicating authority to furnish copies of the documents relied upon, enabling the petitioners to present an effective defense. The failure to do so necessitated setting aside the adjudication order.IV. Binding precedent of the judgment in Mahadev Metaliks Pvt. Ltd.:The court analyzed whether the judgment in Mahadev Metaliks Pvt. Ltd. constituted a binding precedent. It concluded that the judgment did not consider the scope of Regulation 4 of the 2011 Regulations and was a mere direction without analysis. Therefore, it did not constitute a binding precedent. The court emphasized that a decision is binding not because of its conclusions but due to its ratio and principles laid down.V. Applicability of the Supreme Court's order in Commissioner of Customs v. M/s. Navashakti Industries Pvt. Ltd.:The court clarified that the Supreme Court's order in the Navashakti case, directing the release of goods on furnishing a bank guarantee, was issued under Article 142 of the Constitution, a power not available to the High Courts. Therefore, the High Court could not issue a similar direction, as its jurisdiction under Article 226 is circumscribed by limitations.VI. Discretion conferred by statutory regulations and its exercise by the authority:The court highlighted that Regulation 4 of the 2011 Regulations confers discretion on the proper officer to require a bond with such security or surety as deemed fit. This discretion must be exercised by the proper officer and not substituted by the court. The court emphasized that statutory discretion must be exercised reasonably and rationally, guided by relevant considerations, and not influenced by extraneous factors.VII. Impact of the C.B.E. & C. Circular dated 6-10-2015 on the exercise of discretion:The court clarified that the C.B.E. & C. Circular dated 6-10-2015 does not fetter the discretion of the third respondent under Regulation 4 of the 2011 Regulations. The circular pertains to 'wholly obtained imports of gold jewellery from Indonesia' and does not apply to 'not wholly obtained jewellery.' Therefore, the third respondent's discretion remains unfettered by the circular.VIII. Conclusion:The court directed the third respondent to release the imported goods after exercising discretion in terms of Regulations 2 and 4 of the 2011 Regulations and assigning reasons therefor. The court refrained from expressing any opinion on the amount to be deposited or the nature of surety or security to be furnished, leaving these matters to the discretion of the proper officer. The writ petitions were disposed of with no order as to costs.