2025 (10) TMI 1183 - HC - Customs

Writ petition dismissed; Order-in-Original validly served via authorised advocate under s.153(1)(a); clean-hands doctrine bars relief

Bakhodirjon Sultonov Versus Commissioner of Custom & Ors.

The HC dismissed the writ petition, holding the Order-in-Original was validly served on the passenger via the authorised advocate under s.153(1)(a), and ... - ISSUES PRESENTED AND CONSIDERED 1. Whether a writ petition under Articles 226/227 is maintainable challenging continued detention/confiscation of passenger's jewellery where an Order-in-Original has been passed and a copy of that order was received by the passenger's authorised representative/advocate. 2. Whether service of an Order-in-Original on an advocate or authorised representative constitutes valid service on the addressee under Section 153(1)(a) of the Customs Act, 1962. 3. Whether a petition is barred by non-disclosure of material facts (receipt of Order-in-Original and waiver of show cause notice by authorised representative) and the equitable doctrine of 'clean hands' applies to deny relief. 4. What is the appropriate remedy available to the passenger once an Order-in-Original denying free allowance, declaring the passenger ineligible, ordering absolute confiscation under Sections 111(d), 111(j) & 111(m) and imposing penalty under Sections 112(a) & 112(b) has been passed. ISSUE-WISE DETAILED ANALYSIS Issue 1: Maintainability of writ petition after Order-in-Original received by authorised representative Legal framework: Writ jurisdiction under Articles 226/227; Customs Act framework for orders affecting baggage and penalties; administrative orders are amenable to challenge but exhaustion of statutory notices/service principles bear on relief. Precedent treatment: No precedent authorities were cited or relied upon in the judgment; the Court's reasoning is based on statutory text and factual record. Interpretation and reasoning: The Order-in-Original dated 26.02.2024 was shown to have been received by the passenger's authorised representative, an advocate whose Bar Council registration was on record. The Order records that the advocate had appeared before Customs and had submitted a representation and that a waiver of show cause notice had been signed. Given receipt of the Order by the authorised representative, the Court finds the petition itself did not disclose these material facts. Ratio vs. Obiter: Ratio - a writ petition challenging detention/confiscation is not maintainable where the statutory order has been validly served on the authorised representative and the petitioner fails to disclose that service and related material facts in the petition. Conclusion: The petition was held not maintainable on the ground that the Order-in-Original had been received by the authorised representative and the petition omitted that fact; dismissal followed with costs. Issue 2: Validity of service by receipt by advocate under Section 153(1)(a) of the Customs Act, 1962 Legal framework: Section 153(1)(a) - modes for service include giving or tendering an order to the addressee or to his authorised representative including advocate. Precedent treatment: No judicial authorities were cited; the Court applies the plain wording of Section 153(1)(a). Interpretation and reasoning: The Court held that once the advocate/authorised representative had received the copy of the Order-in-Original, the order must be considered served on the passenger as contemplated by Section 153(1)(a). The Court rejected the petitioner's contention that the advocate's failure to inform the petitioner meant service had not occurred. Ratio vs. Obiter: Ratio - service on an authorised representative/advocate satisfying Section 153(1)(a) constitutes service on the addressee for purposes of the Customs Act. Conclusion: Service effected by handing the order to the registered advocate/authorised representative is valid and binding on the passenger; therefore non-receipt by the passenger personally is not a ground to render the Order-in-Original invalid on service grounds in this case. Issue 3: Effect of waiver of show cause notice and personal hearing by authorised representative Legal framework: Requirement of show cause notice and personal hearing under customs adjudicatory process; parties can waive procedural rights by authorised act. Precedent treatment: No precedents were cited or discussed. Interpretation and reasoning: The Order-in-Original records that the authorised representative submitted a representation on 19.12.2023 and that the petitioner purportedly waived the show cause notice and personal hearing. The Court treated the recorded waiver and representation made through the authorised representative as material, and noted the petition failed to disclose that waiver. Ratio vs. Obiter: Ratio - an authorised representative's express waiver of show cause notice and personal hearing, recorded by the adjudicating authority, is a material fact which, if undisclosed in subsequent judicial proceedings, affects maintainability. Conclusion: The recorded waiver weighed against the petitioner; the appropriate remedy for contesting such recorded acts is to challenge the Order-in-Original rather than maintain a writ petition alleging non-service or denial of hearing. Issue 4: Application of equitable doctrine of clean hands and consequences of non-disclosure Legal framework: Equity/clean-hands principle in public law proceedings; duty to make full and candid disclosure when approaching the Court for equitable relief. Precedent treatment: None cited; principle applied on facts. Interpretation and reasoning: The Court found the petitioner had not approached with clean hands by omitting the fact that the advocate had received the Order-in-Original and had waived show cause notice. The omission was material and undermined the petitioner's prayer for relief. Even if doubt remained, the Court observed the only remedy was to challenge the Order-in-Original itself. Ratio vs. Obiter: Ratio - non-disclosure of material facts (receipt by authorised representative, recorded waiver) engages the clean-hands doctrine and may render equitable relief inappropriate; failure to disclose defeats maintainability. Conclusion: Petition dismissed on ground of non-disclosure and want of clean hands; costs directed to be paid to Customs; petitioner left free to challenge the Order-in-Original by appropriate statutory remedy (including applications for condonation of delay where relevant). Issue 5: Appropriate remedy after confiscation and penalty order Legal framework: Statutory appellate/review remedies against Orders-in-Original under Customs Act; writ jurisdiction is available but subject to facts such as valid service and disclosure. Precedent treatment: None cited. Interpretation and reasoning: The Court emphasized that where an Order-in-Original has been passed and validly served on the authorised representative, the correct route to contest the substantive finding of confiscation and penalty is to challenge the Order-in-Original itself in accordance with law and pursue condonation of delay if necessary. Ratio vs. Obiter: Ratio - once an Order-in-Original confiscating goods and imposing penalty is passed and validly served, the remedy lies in challenging that order by the available statutory or judicial avenues; a collateral writ that omits service/waiver facts is not maintainable. Conclusion: The petitioner was directed to challenge the Order-in-Original by appropriate legal proceedings; the present petition was dismissed with costs, leaving statutory remedies open. Cross-reference: see Issues 1-3 concerning service, waiver and non-disclosure.