AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 645
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly by passing on photographs and flight details of carriers confronted the officers; that according to the Department, initially the said officers denied their involvement but subsequently, they admitted that they planned to clear some passengers arriving by certain flights; that there was an interception, 18 passengers who arrived by various flights were intercepted; that according to the Department, they were carrying gold in paste form in bundle shaped packets concealed in their rectum; that passengers opted for personal search; that passengers voluntarily accepted to eject the packets; that on 20.02.2020, a statement was recorded from the writ petitioner under Section 108 of 'The Customs Act, 1962 [Act 52 of 1962]' [hereinafter 'said Act' for the sake of convenience and clarity]; that in this statement, the writ petitioner has inter alia agreed that Seizure Mahazar dated 19.02.2020 was drawn at Chennai Airport; that consequent to such admission by the writ petitioner and further admission for having secreted monies gathered in his house, search proceedings were initiated by DRI officials inter alia at the residence of the writ petitioner at No.8, 3rd Floor, U-Bl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rned counsel initially attempted to say that cross-examination of co-noticees is a right and the same has been denied but subsequently, he stated that he would restrict his submission to personal hearing; (c) Judgment of Hon'ble Supreme Court in Ayaaubkhan case [Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and others] being an order dated 08.11.2012 in Civil Appeal No.7728 of 2012, judgment of Hon'ble Division Bench of Gujarat High Court in Vulcan Industrial case law [Vulcan Industrial Engineering Co. Ltd., Vs. Union of India reported in 2013 (297) E.L.T. 190 (Guj.)] and another judgment of Hon'ble Supreme Court in Veetrag Enterprises case law [Veetrag Enterprises Vs. Commr. of Cus. (Seaport Exports), Chennai reported in 2015 (330) E.L.T. 74 (Mad.)] were pressed into service inter alia in support of personal hearing and cross examination pleas; 6. This writ Court, carefully considered the submissions made by learned counsel for writ petitioner in the light of case laws that were pressed into service. To be noted, some other case laws have been annexed as part of typed set of papers but only the aforementioned case laws were pressed into service. This writ ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een made under Section 110 of said Act and an appeal to the Commissioner of Customs (Appeals) lies under Section 128 of said Act. If the alternate remedy is availed, the factual disputations, if any, can always be gone into. In this regard, this writ Court reminds itself of a long line of authorities starting from Dunlop case [Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd., and others reported in (1985) 1 SCC 260], Satyawati Tandon principle [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110], K.C.Mathew case [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. reported in (2018) 3 SCC 85], Commercial Steel Limited case [The Assistant Commissioner of State Tax and Others Vs. M/s Commercial Steel Limited reported in 2021 SCC OnLine SC 884], and Greatship case law [State of Maharashtra and Others Vs. Greatship (India) Limited reported in [2022 SCC OnLine SC 1262]. (ii) In Dunlop case, respondent claimed benefit of exemption from excise duty to the tune of Rs.6.05 Crores in respect of tyres manufactured by them, on the basis of a notification issued by the Government of India, Ministry of F....
X X X X Extracts X X X X
X X X X Extracts X X X X
....after 'SARFAESI Act' for the sake of brevity), which was allowed by the District Magistrate / Collector, Allahabad. Respondent No.1 filed CMWP No.55375 of 2009 seeking to restrain the appellant from taking coercive action. A Division Bench of the Allahabad High Court passed an order restraining the appellant from taking action pursuant to the notice issued under Section 13(4) of the SARFAESI Act, against which the appellant moved Hon'ble Supreme Court. Hon'ble Supreme Court held that while dealing with the petitions involving challenge to the action taken for recovery of public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. (iv) Satyawati Tandon principle was reit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' (underlining made by this Court to supply emphasis and highlight) (v) Commercial Steel is a case where the High Court set aside the action of the appellants in collecting an amount from the respondent towards tax and penalty under the Central Goods and Services Tax Act, 2017 (CGST) and State Goods and Services Tax Act (SGST) and directed refund with interest. The case of the Revenue was that the respondent was attempting to sell the goods in the local market by evading SGST and CGST in the guise of an inter State sale. A detention order was issued. The respondent had paid the tax and penalty. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ring was fixed on 16.03.2020. However, on 16.03.2020 the Assessing Officer was not available and therefore no hearing took place. According to the writ petitioner, multiple telephone calls were made to the Assessing Officer on 17.03.2020, 18.03.2020 and 19.03.2020 for personal hearing, but no such hearing materialised. According to the writ petitioner, vide letter dated 20.03.2020 it was submitted before the Assessing Officer that for the financial year under consideration the relevant documents had already been submitted and personal hearing was requested. The Assessing Officer passed an order on 20.03.2020 determining the tax liability along with interest and penalty under the MVAT Act and CST Act. 4. That without preferring any appeal before the first appellate authority, the respondent - assessee - original writ petitioner filed a writ petition before the High Court challenging the assessment order passed under the provisions of the MVAT Act and CST Act alleging inter alia that no order was passed on 20.03.2020 and it was passed in the month of July, 2020, which was beyond the period of limitation. The High Court has entertained the said writ petition against the assessment o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eak for itself. In the case on hand, several statements have been recorded including that of the writ petitioner and therefore, as the dates have been given with specificity seen in the light of a letter dated 28.07.2022 written by counsel for the writ petitioner to which the attention of this Court is drawn, this Court finds that personal hearing is a matter which turns on factual disputation and the same can be gone into by the Appellate Authority if the writ petitioner chooses to avail the alternate remedy of appeal. This answers NJP facet of the matter. (viii) As regards Section 122A captioned 'Adjudication Procedure' and more particularly proviso to sub-section (2) thereat, this writ Court is unable to accept the interpretation which the learned counsel for writ petitioner wants to place on the proviso. Proviso to sub- section (2) of Section 122A reads as follows: '122A. Adjudication Procedure 1 ....................... 2. The adjudicating authority may, if sufficient cause is shown at any stage of proceeding referred to in sub-section (1) grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Padma Sundara Rao declaration of law, a careful perusal of case laws unfurls this scenario in this writ Court. Ayaaubkhan case rendered by Hon'ble Supreme Court is one pertaining to reference of a Scheduled Tribe certificate by vigilance to the Scrutiny Committee. In that context, Hon'ble Supreme Court, in paragraph No.46 thereat held that the Scrutiny Committee had conducted an enquiry and an application for cross-examination of witnesses must be disposed of. A Scheduled Tribe Certificate and examination of the same by a Scrutiny Committee is completely different from the facts of the case on hand which pertains to alleged smuggling of huge quantity of about 400 kilograms of gold said to be valued at 160 Crores INR. Comparing the two facts in the considered view of this writ Court is comparing Apples and Oranges or to put it differently comparing Chalk and Cheese. That by itself makes it clear that if the declaration of law made by the Constitution Bench of Padma Sundara Rao principle, is applied, Ayaaubkhan case does not aid the writ petitioner in the case on hand. To add specificity, this is to be noticed that Scheduled Tribe Certificate is a affirmative action which ....