2017 (5) TMI 444 - HC - Customs

Court Dismisses Petitions, Emphasizes Statutory Remedy

RAMESH VASANTBHAI BHOJANI Versus UNION OF INDIA & 2

RAMESH VASANTBHAI BHOJANI Versus UNION OF INDIA & 2 - 2017 (357) E.L.T. 63 (Guj.) Issues Involved:1. Breach of principles of natural justice.2. Non-speaking order.3. Issuance of repeated show cause notices for the same cause of action.4. Rejection of application for condonation of delay.Detailed Analysis:1. Breach of Principles of Natural Justice:The petitioner argued that the order-in-original was passed without granting a proper opportunity for a personal hearing, violating the principles of natural justice. The petitioner received two hearing notices at his parents' address, which were forwarded to him late, leaving insufficient time to arrange for his advocate's presence. The petitioner submitted preliminary and final replies but was not granted a personal hearing before the order was passed.The court noted that the first hearing notice was issued on 08.08.2014, fixing the hearing on 19.08.2014, and the second notice was issued on 15.09.2014, fixing the hearing on 25.09.2014. The petitioner did not inform the adjudicating authority to send notices to his Surat address. The court observed that section 122A of the Customs Act, 1962, requires a maximum of three adjournments, but does not mandate that three adjournments must be granted as a matter of course. The adjudicating authority granted three opportunities for a hearing, which the petitioner did not utilize. Therefore, the court held that there was no breach of natural justice.2. Non-Speaking Order:The petitioner contended that the order-in-original was non-speaking as it did not provide findings on the written submissions. The court examined the order and found that the adjudicating authority had considered the preliminary objections and the final reply submitted by the petitioner, and recorded findings in paragraph 63 of the order. Thus, the court concluded that the order was not non-speaking.3. Issuance of Repeated Show Cause Notices:The petitioner argued that the second show cause notice was issued for the same cause of action, period, and evidence as the first show cause notice dated 24.01.2011, which culminated in an order-in-original dated 30.03.2012. The court referred to the affidavit-in-reply, which clarified that the second show cause notice covered different shipping bills than the first notice. Therefore, the court held that the second show cause notice was not for the same cause of action.4. Rejection of Application for Condonation of Delay:The petitioner challenged the rejection of his application for condonation of delay by the Commissioner (Appeals). The court noted that section 128 of the Customs Act allows for an appeal to be filed within sixty days from the date of communication of the decision, with a further condonable period of thirty days. The petitioner's appeal was filed beyond this period, and the Commissioner (Appeals) had no authority to condone the delay beyond thirty days. The court referred to the Supreme Court's decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, which held that appellate authorities cannot condone delays beyond the statutory period. Therefore, the court found no legal infirmity in the rejection of the condonation application.Conclusion:The court dismissed the petitions, holding that there was no breach of natural justice, the order-in-original was not non-speaking, the second show cause notice was valid, and the rejection of the condonation application was justified. The court emphasized that the petitioner should have availed the statutory remedy of appeal before the Appellate Tribunal under section 129A of the Customs Act. The petitions were dismissed as not maintainable, with no order as to costs.