TaxTMI 
TaxTMI 
2021 (9) TMI 48
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch of the Customs, Excise and Service Tax Appellate Tribunal having its Registry at West Block, No.2, R.K.Puram, New Delhi - 110 022 in matters pertaining to the rate of duty (Classification) and value of the goods for the purposes of assessment of duty (Valuation) / Jurisdictional CESTAT; (b) South Regional Bench of the Tribunal having its Registry at Shastri Bhavan, Annexe Building, 1st Floor, 26, Haddows Road, Chennai - 600 006 in matters pertaining to cases other than those mentioned at para 2(a) in the preamble to the order impugned / Jurisdictional CESTAT. 3. The procedures for filing an appeal is also enumerated in the order impugned itself. 4. The petitioners admittedly have not preferred any appeal as contemplated under the provisions of the Act. They have chosen to file the present writ petitions raising several grounds both factually and on certain legal grounds. However, the disputed facts and the mixed question of law and facts are to be adjudicated before the competent appellate authority based on the original documents and evidences. The appellate authority is the final fact finding authority. The importance attached to the appellate remedy, as contemplated under t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lness of grounds are to be considered by the Courts, so also the necessity of adjournments. Adjournments are always enemy to justice and therefore, even while granting adjournments, the Courts are expected to be cautious and ensure that the matters taken up once must be heard and disposed of in the manner known to law. This being the principles which is to be followed in the interest of Justice Delivery System, this Court is of the opinion that, by citing a pendency of one case before the High Court or the Hon'ble Supreme Court, adjournments cannot be granted in a routine manner and the implications involved on the issues raised as well as the facts established are to be taken into consideration for the purpose of disposing of the matters. 7. As far as the present writ petitions are concerned, the order-in-original is under challenge. Admittedly, the appellate remedy is available and the petitioners have not chosen to file the appeal. Regarding the term 'Proper Officer' who is competent to issue proceedings, this Court considered the principles in the case of M/s.RKKR Steel Joseph Philip Vs. The Central Board of Excise and Customs reported in 2021-TIOL-1599- HC-Madras-....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the word -proper officer- and as per the definition under Section 2(34) of the Act, -proper officer- means the officer having jurisdiction over the concerned person. However, in the event of exercising the powers under Section 4(1), if the Board appoints any other officer as an officer of customs, then such an officer becomes the proper officer within the definition under Section 2(34) of the Act, who in turn is empowered to exercise the powers of officers of customs under Section 5 of the Act. 16.This being the constructive interpretation of the provisions of the Act, this Court is of the considered opinion that the judgments cited by the petitioners are not with reference to Sections 4 and 5 of the Act and thus, the interpretation offered by the learned counsel for the petitioners stands rejected. 17.As far as the show cause notices are concerned, the merits are to be adjudicated by the competent authority/the respondent. High Court cannot adjudicate the disputed facts with reference to the documents and evidences to be produced by the respective parties. Thus, the petitioner has to submit their explanations/objections, if any, along with the documents and evidences to the r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 learned counsel for the appellants and the learned Senior Standing Counsel appearing for the respondent, we are of the view that the issues raised in the writ petition are not purely questions of law, but mixed questions of fact, which would require a process of adjudication. Such matters cannot be decided by a Writ Court based on affidavits. Therefore, we do agree with the ultimate conclusion of the learned Writ C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dia. 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 and evidences, there is a possibility of miscarriage of justice, and therefore, the High Court is expected to be cautious, while entering into the venture of adjudication of certain merits with reference to the original documents and evidences produced by the respective parties to the lis. This being the legislative intention, High Court is expected to trust the institutional authorities as well as t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....but usurping the powers of the appellate authority is certainly not desirable. 16.... 17.... 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 statutory remedies, writ petitions are to be entertained. In the absence of exhausting such remedies, High Court is loosing the benefit of deciding the matter on merits as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide an unnecessary opportunity to the....