TaxTMI 
TaxTMI 
2021 (6) TMI 436
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....bligation, the petitioner company had submitted an application dated 21.01.2016 to the Zonal Director General of Foreign Trade, Chennai. The said application submitted for obtaining an export obligation discharge certificate and in support of the said application, the petitioner had submitted the original advance authorization. Form-ANF-4F, original export promotion copies of the 11 shipping bills mentioned above, copies of the bills of entry and Appendix-23 certified by the Chartered Accountant. In response, the Assistant Director General of Foreign Trade issued a deficiency letter dated 25.01.2016, calling upon the petitioner to submit the bank realization certificates in respect of the exports made by them. The petitioner states that the said certificate was also submitted vide their letter dated 15.12.2017. Thereafter, there was no response from the Zonal DGFT, Chennai. 4.The Joint Commissioner of Customs / second respondent issued a show cause notice dated 06.11.2020, calling upon the petitioner to show cause as to why customs duty amounting to Rs. 20,70,798/-(Rupees Twenty Lakhs Seventy Thousand Seven Hundred Ninety-Eight only) should not be demanded from the petitioner for ....
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....e contentions of the petitioner were considered by the authorities competent. The findings of the impugned order, more specifically, in paragraph 12, it is elaborately contended that the petitioner has not fulfilled the EODC. This apart, the opportunities were given, personal hearing was also granted. Therefore, the contentions raised in this regard by the petitioner are incorrect and they are bound to prefer an appeal, if at all they are advised to do so. In order to avoid the appellate remedy and payment of deposit as contemplated under the Statute, the present writ petition is filed and thus, the writ petition is to be dismissed. 8.In this regard, it is relevant to extract paragraph 12 of the impugned order, which reads as under: "12. A demand notice dated 22.11.2017 was issued to importer. As per www.eodc.online an order no.04/21/40/372/AM16 dated 04.11.2020 is in force, according to which a DEL Order no.68/AM20 is issued to importer for not-fulfilling the EODC. After issuance of SCN, the importer was given fifteen days time to reply to the Show Cause Notice and personal hearings were fixed on 13.11.2020, 20.11.2020 and 27.11.2020. The importer sent a letter dated 01.12.....
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.... Commissioner of Customs (Appeals) before whom the legal practitioners are permitted to test the cases. When the litigants are having the benefit of legal assistance through the legal practitioners, then such a remedy must be exhausted by the aggrieved persons before approaching the High Court under Article 226 of the Constitution of India as stated above. Disputed facts cannot be adjudicated by the High Court nor a finding can be given in a writ proceedings without exhausting the appellate remedy and therefore, the petitioner is bound to approach the appellate authority under the Act. The introductory portion of the impugned order reveals that an appeal against the impugned order lies with the Commissioner of Customs (Appeals), 5th Floor, Customs House, Chennai, under Section 128(1) of the Customs Act, 1962, within 60 days of the communication of the impugned order. The petitioner also is aware of the appellate remedy provided. However, by raising certain legal grounds, litigants are attempting to sustain the writ petition, which is not otherwise entertainable without exhausting the appellate remedy contemplated under the provisions of the Customs Act. Such a practice by the liti....
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....ted under the Act is to be exhausted in all circumstances and only under extraordinary circumstances, in order to mitigate injustice, the High Court can intervene and not otherwise. Such power of dispensing with the appeal remedy is to be exercised sparingly and not in a routine manner. The learned Senior Standing Counsels reiterated that, in respect of the writ petitions on hand, the original assessment order has been passed either by the Joint Commissioner or by the Commissioner of Customs. Against such original orders passed by the original authorities under the provisions of the Customs Act, an appeal is contemplated under Sections 128 and 129 of the Customs Act, respectively. Without exhausting the appellate remedy, the writ petitioners have filed these writ petitions, and therefore, the writ petitions are liable to be dismissed. 8.With reference to the appellate remedy, the Hon'ble Division Bench of this Court in W.A.No.640 of 2021 [M/s.Fourceess Diamond Pvt. Ltd. and another v. The Joint Commissioner of Customs (Air Cargo), Meenambakkam, Chennai] delivered a judgment on 25.02.2021 and the relevant paragraphs are extracted hereunder : "8.After elaborately hearing the ....
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....er known to law. Such appeal provisions are provided with the legislative intention to provide remedy to the aggrieved persons. The High Court, in normal circumstances, would not interfere nor dispense with the appellate remedy. 13.The High Court cannot adjudicate the facts and merits with reference to documents and evidences. Trial is not entertainable under Article 226 of the Constitution of India. All such procedural aspects are to be followed by complete adjudication/trial by the original authorities as well as by the appellate authorities under the provisions of the Statute and the powers under Article 226 of the Constitution of India is limited to find out whether the processes contemplated under the Statutes and the procedural aspects are followed by the competent authorities as well as the appellate authorities or not. The High Court, under Article 226 of the Constitution of India, is not expected to usurp the powers of the appellate authorities by adjudicating the merits of the matter on certain documents and evidences. In the event of adjudication of merits under Article 226 of the Constitution of India in the absence of complete trial with reference to the documents ....
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....owers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority is certainly not desirable. 18.Large number of writ petitions are filed without exhausting the statutory appeal remedies and High Court is also entertaining such writ petitions in a routine manner. Keeping such writ petitions pending for long time would cause prejudice to the interest of the assessee also. Thus, such statutory provisions regarding the appeal are to be decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise. However, the Courts are expected to ensure that all such legal grounds available to the parties are adjudicated before the proper Forum and only after exhausting the stat....