TaxTMI 
TaxTMI 
2010 (2) TMI 1119
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....h Court. - (1) The Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 129B passed [before the 1st day of July, 2003] (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. (2) The Commissioner of Customs or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred. (3) On receipt of notice that an application has been made under sub-section (1), the person, against whom such application has been made, may, notwithstanding that he may not ha....
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....riod of one year seven months from the date of passing of the order i.e. after the period of more than one year of the expiry of the normal period of limitation to approach this Court invoking reference jurisdiction of this Court under Section 130A of the Act. 5. Brief facts leading to this petition are that : The customs authorities on credible information had caused an inspection and search on the premises of one M/s. Mishra Enterprises as on 20-9-1999 at No. 34/2, Annadanappa Lane, Bangalore and had come across 66 bales of silk yarn valued then at Rs. 25,04,337/-, found stocked in the premises and prima facie failed to account properly and that the person in-charge reportedly having claimed that he was only an agent of the present respondent Rajat Gupta of M/s. Rajadhani Cotton and the said person having responded by saying that he was only a person who deals with such imported silk for selling it to others on commission basis. 6. Customs authorities, after seizing the said 66 bales of imported silk yarn, had proceeded to issue a show cause notice dated 3-3-2000 (copy at Annexure-A to the writ petition) not only to the respondent herein but also to other person namel....
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....angalore to the premises of respondent Rajat Gupta and it was a valid transportation of a validly imported goods of foreign origin and having paid all duty liability and other fees, and therefore, did not either deserve to be confiscated or persons involved in the goods deserved to be mulcted with penalty under Section 112 of the Act and in this view of the matter, set aside the confiscation order and penalties and has held that the provisions of Section 123 of the Act are not attracted to the goods in question and inevitably the Tribunal has to allow the appeal in the following terms : "In view of our findings, the order is set aside and appeals allowed with consequential benefits as prayed as per Supreme Court decision in case of Nothern Plastics - 1999 (33) E.L.T. 3 (SC)." 9. It is aggrieved by this order, the present writ petition by the Commissioner of Customs, having not availed of the normal remedy of a reference in terms of Section 130A of the Act. 10. Preliminary objection raised by Sri Chidananda Urs, learned counsel for the respondent proceeds on the premise that a writ petition of this nature is not maintainable; that the jurisdiction of the High Cour....
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....ssioner in such a circumstance, particularly to make up for a lapse, if any, on the part of the Commissioner in not diligently taking care of the interest of the revenue, if at all, by filing an application seeking for a reference within the period of limitation in terms of Section 130A of the Act. 14. We shall first deal with the preliminary objection raised by the learned counsel for the respondent and then will take up the scope of examination and if there is any need or necessity to interfere with the order passed by the Tribunal in exercise of writ jurisdiction. 15. Submission of Sri Hariprasad, learned Central Government Standing Counsel is that the writ petition had come to be filed bona fide in the wake of certain changes that were in the offing due to amendment to the relevant provisions of the Act; that a reference should not have been sought within the period and therefore the Commissioner being of the bona fide impression to the subject order being even amenable to correction within the scope of Articles 226 and 227 of the Constitution of India, has caused this present writ petition; that it is not any prosecution lacking bona fides or with any mala fides, b....
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....nstitution of India. 19. We have bestowed our anxious consideration to the submissions made at the Bar, particularly, the preliminary objection raised by Sri Chidananda Urs, learned counsel for the respondent. 20. As to whether the provisions of Section 5 of the Limitation Act which enables a Court to extend the period of limitation, in the sense, to condone the delay beyond the period of limitation otherwise prescribed is made applicable or not to other enactments under which a separate period of limitation is prescribed under the very enactment and is not one covered by the Limitation Act, the applicability or otherwise of Section 5 of the Limitation Act has been considered by the Supreme Court in Hongo India (P) Ltd., case (supra) and it was opined that such question has to be answered by necessarily looking into the provisions of the particular enactment which has prescribed a separate or independent period of limitation for preferring an appeal, revision or a reference and there cannot be a generalization of the applicability or otherwise of Section 5 of the Limitation Act to all situations. 21. However, the Supreme Court having taken the view that in respect....
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....d view, that is not the end of the matter. It is well settled on authority that the writ jurisdiction under Articles 226 and 227 of the Constitution of India is not the same as either the appellate jurisdiction or revisional or reference jurisdiction which is an express jurisdiction conferred on the High Court under the respective enactments and the High Court virtually acts as a Tribunal under these enactments for examining such matters, whereas in writ jurisdiction, the High Court functions as a constitutional Court the power conferred on it under the Constitution of India and it is not the power which is either circumcised or to be regulated by other statutory provisions, until and unless, a special law to this effect has been made in terms of Part XIVA of the Constitution of India and here again in terms of the judgment of the Supreme Court even in respect of such Tribunals specially constituted and providing for exclusion of the original jurisdiction of the High Court as provided for under Articles 323A and 323B of the Constitution of India and if the law as declared by the Supreme Court in L. Chandra Kumar v. Union of India reported in 1997 (92) E.L.T. 318 (SC) and later foll....
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.... tenability of the petition and would examine the merits of the petition albeit within the scope of the petition under Article 227 of the Constitution of India and not as though it is a reference in terms of Section 130A of the Act. 27. The factual position in the present case is as indicated earlier certain seized articles which have been confiscated and penalties levied on persons involved in the transportation or movement of the goods which in the opinion of the adjudicating officer was not properly explained for the licit importation and therefore had acquired the character of prohibited goods and the Tribunal taking a contrary view that the respondent herein had more or less made up the case as claimed by him that it was a licit importation with reference to certain documents said to be relied upon by the respondent, to indicate that it was a case which had been cleared through the customs port and after paying necessary duty. The bone of contention is only on this aspect of the matter and nothing beyond. While this may be an aspect which incidentally touches/depends upon the merits of the case also, what we have found is even at the earliest point of time when the respo....
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....asing its decision to reverse the order of the adjudicating authority is nothing short of an act of perversity by calling in aid the legal position which is not even attracted to the fact situation of the case. 31. To compound this, if the Tribunal proceeds on an erroneous understanding of the provisions of Section 123 of the Act, even as per the development of law in terms of the decided cases and wrongly applies that, it is inevitable that we cannot ignore an order of the Tribunal which is passed in such manner and involving such infirmities when it is brought to our notice. 32. We are quite conscious that the respondent is very agitated and aggrieved and if the order of the Tribunal should be disturbed in a petition of this nature and at this point which could possibly not only disentitle the respondent to lay its claim to the goods which had been confiscated under the order passed by the adjudicating authority but would also revisit the respondent with penalties as had been levied by the adjudicating authority. It is not with reference to the consequences of a result a legal position is examined but the consequence follows when once legal position is clarified or la....
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....nt of the respondent with the goods but that does not in any way alter the character of the goods if it is a prohibited goods and leading to confiscation. 35. Of course, there was a possibility of the goods being permitted to be redeemed to the person in whose hands it was seized or a person who can lawfully lay claim on payment of redemption fine if it is not a notified goods, is a possibility which we are aware, but we find that further stand of the respondent that if at all any contravention has taken place, it can only be in the hands of the importer, namely, M/s. Prashant Glass Works at Varanasi and the respondent cannot be expected to satisfy the licit importation of the goods is another circumstance to indicate the inconsistent stand and in this state of affairs, the provisions of Section 125 of the Act to allow an option to pay redemption fine in lieu of confiscation cannot even arise as it is not clear as to who can lay the claim to the goods with each person owning or disowning the goods depending upon the convenience and not because of a bona fide claim. 36. The Appellate Tribunal though has made a farce of examining the material said to have been placed by t....
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....ne which has to stand scrutiny on the touchstone of proof beyond reasonable doubt, but this is only on the touchstone of preponderance of probabilities. The Tribunal proceeding to apply irrelevant principles to reverse the order passed by the adjudicating authority is a reason which compels us to exercise our jurisdiction under Article 227 of the Constitution of India even though the order of the Tribunal when it is brought to our notice in the writ jurisdiction was already about a year and seven months old and at any rate about one year beyond the period of limitation for invoking our jurisdiction under Section 130A of the Act. 40. The observation of the Tribunal quoting the judgment of the Supreme Court in the context of basic canon of criminal jurisprudence as reflected in the case of Amba Lal v. UOI reported in 1983 ECR 1935 (SC) = 1983 (13) E.L.T. 1321 (S.C.) which reads thus : "Therefore, in the present case, as in all such cases, of goods not covered by Section 123 of the Customs Act, 1962, the onus is in the department to prove the case as a fundamental principle of Criminal Jurisprudence, or basic canons of jurisprudence, the phrase used in D. Bhoormul's case (supra....
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....doubtedly not conferred under the Customs Act, but the jurisdiction conferred on the High Court under the Constitution and the only limit of this jurisdiction is that it will have to be exercised within the scope of the particular jurisdiction whether under Article 226 or Article 227 of the Constitution of India and cannot be equated with the jurisdiction which the High Court would otherwise exercise in terms of Section 130A of the Act. 44. We are quite conscious of this limitation and we have examined the petition within the scope of Article 227 of the Constitution of India and therefore the submission does not merit acceptance nor the judgments relied upon can be of any avail to hold that the writ petition itself is not tenable in law. 45. Sri Chidananda Urs, learned counsel for the respondent has also placed reliance on the following decisions to vehemently urge that in view of the availability of the statutory remedy, this writ petition should not be entertained. * Sadhana Lodh v. National Insurance Company Ltd. [AIR 2003 SC 1561] * Mahanagar Telephone Nigam Ltd. v. Chairman, CBDT [2004 (168) E.L.T. 147 (S.C.)] * Nivaram Pharma Pvt. Ltd. v. CEGAT, Madras [2006....
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.... for sale of goods and application of sale proceeds. - (1) Where any goods not being confiscated goods are to be sold under any provisions of this Act, they shall, after notice to the owner thereof, be sold by public auction or by tender or with the consent of the owner in any other manner. (2) The proceeds of any such sale shall be applied - (a) firstly to the payment of the expenses of the sale, (b) next to the payment of the freight and other charges, if any, payable in respect of the goods sold, to the carrier, if notice of such charges has been given to the person having custody of the goods, (c) next to the payment of the duty, if any, on the goods sold, (d) next to the payment of the charges in respect of the goods sold due to the person having the custody of the goods, (e) next to the payment of any amount due from the owner of the goods to the Central Government under the provisions of this Act or any other law relating to customs, and the balance, if any, shall be paid to the owner of the goods." that the sale effected without giving p....