TaxTMI 
TaxTMI 
2009 (8) TMI 26
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....nsofar as W.P.Nos.9934 and 9935 of 2009 are concerned; the order dated 20.5.2009 passed by the Commissioner of Customs, Mumbai, insofar as W.P.No.10264 of 2009; and the orders dated 30.5.2009 and 8.6.2009 passed by the Assistant Commissioner of Customs, New Delhi, insofar as W.P.Nos.10432 and 10730 of 2009 are concerned. 2. The case of the petitioner as could be seen from the affidavit filed in support of W.P.No.9935 of 2009 is as follows: (a) The petitioner is an Electronics Engineer by vocation and he invented Plurality of Subscriber Identity Module (SIM) and Plurality of Blue Tooth Technology and its viability using switch circuit technology. According to petitioner, due to his invention, multiple sims can be used at the same time in one instrument. (b) It is claimed by the petitioner that by changing the entire circutory of the existing mobile phone, Plurality of Blue Tooth Devices can be fitted, which would help to operate simultaneously, the mobile phones in different communication networks, which avoid multiplicity of phones and also radicalises the concept of mobile phones across the globe, by which the cost of manufacturing is reduced. (c) According to the peti....
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....i, Chennai-27, from 27.1.2009 onwards. This Court disposed of the writ petition on 23.2.2009 by observing as follows: "3. Paragraphs 21 of the counter affidavit is usefully extracted hereunder: "21. I further submit that there are no imports of dual SIM phones through Chennai Seaport i.e., by the 4th respondent and therefore no action has been taken inthis regard by the Sea Commissionerate. As regards imports made through the Air Commissionerate i.e., the 3rd respondent from 27.1.2009 onwards i.e., on the day immediately after completion of the registration with UPRNo. A0167INMAA4PR and there after, around 250 clearances were permitted only with the consent of the Patent Holder, namely the petitioner herein and cleared from the Customs frontier. Other Customs houses in India have also been informed about the registration and necessary protection is given to the petitioner." 4. Taking into account the counter affidavit filed by the respondents and since the action had already been initiated by the third respondent after the registration of the Patent Holder notice on 19.1.2009, the respondents shall continue to take action till the certificate is valid as per law. The writ ....
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.... right of the petitioner. (l) The second respondent sought for written submissions clarifying the technical aspect of the petitioner's patent. According to the petitioner, the second respondent in these writ petitions viz., Assistant Commissioners of Customs/Commissioner of Customs have no technical expertise and they sought for written submissions clarifying the technical aspect of the petitioner's patent. The petitioner also submitted written submissions. (m) The grievance of the petitioner is that in spite of the above written submissions, the second respondent held that the Patentee had made misdeclaration to the Customs Department as to the existence of genuine products, and by the impugned orders, ordered release of the goods. The said orders are challenged in these writ petitions raising various grounds. 3. The respondents 1 and 2 and third respondent in each of the writ petitions filed separate counter affidavits and raised preliminary objections viz., the writ petitions are not maintainable due to the availability of effective alternate remedy to the petitioner by filing appeal against the impugned orders. Insofar as W.P.No.10264 of 2009, W.P.No.10432 of 2009 and ....
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....ly personal hearing was fixed on 6.5.2009 and in spite of service of notice sent through E-mail to the petitioner. 5. The third respondents in these writ petitions filed counter affidavits and raised the above said preliminary objections, apart from the merits of the cases. In the counter affidavit filed in W.P.No.10730 of 2009 the third respondent stated that as against the order of the Assistant Commissioner of Customs, New Delhi, appeal lies before the Commissioner of Customs (Appeals), New Delhi, under sections 128 and 128A of the Customs Act, 1962 and appeal against the order of Commissioner of Customs, Mumbai, lies before CESTAT under sections 129 and 129A of the Customs Act, 1962. Against the order of the CESTAT, appeal would lie to the National Tax Tribunal under Section 15 of the National Tax Tribunal Act, 2005, and thereafter appeal would lie to the Supreme Court. Insofar as the territorial jurisdiction is concerned it is contended that even if the petitioner has registered his patent before the Commissioner of Customs, Chennai Airport & Air Cargo, Chennai-27, orders having been passed by the respondents at New Delhi and Mumbai, petitioner cannot challenge the said ord....
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....orders have no jurisdiction to interpret the patent rights of the petitioner. It is further submitted that in W.P.No.10730 of 2009, without hearing the petitioner, the impugned order was passed and insofar as other cases are concerned there is violation of principles of natural justice and once the petitioner establishes the fact of violation of principles of natural justice and also the lack of jurisdiction to decide the violation of patent right, the writ petitions filed challenging the impugned orders are maintainable. The learned Senior Counsel also cited the decisions of the Supreme Court and of this Court in support of his contention with regard to the maintainability of the writ petitions. The learned Senior Counsel further submitted that insofar as the orders passed by the customs authorities at Mumbai and New Delhi are concerned, part of the cause of action having arisen within the State of Tamil Nadu, this Court has got territorial jurisdiction to entertain the writ petitions, on the ground that the patent rights of the petitioner is registered at Chennai. The petitioner has filed civil suit and obtained interim order of injunction against the respondents in C.S.No.....
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....rities concerned, the petitioner is bound to file appeal before the Statutory Authority as contemplated under the provisions of the Customs Act, 1962, where the hierarchy of the officers are mentioned to file appeal. On the above said two grounds viz., disputed facts cannot be decided in writ jurisdiction and when the statute provides for alternate remedy, the party should avail the same before approaching the High Court under Article 226 of the Constitution of India was emphasised. (ii) The learned Senior Counsel further submitted that insofar as the territorial jurisdiction in entertaining the writ petition with regard to the orders passed at Mumbai and New Delhi, the petitioner is not entitled to file writ petitions before this Court since the imported goods arrived at Mumbai and New Delhi; the petitioner executed bond at Mumbai and New Delhi; appeared for personal hearing at Mumbai and New Delhi; and orders were also passed by the authorities at Mumbai and New Delhi respectively. Merely because the petitioner registered his patent rights through E-Filing at Chennai, the same will not confer any cause of action to challenge the orders passed by the authorities at Mumbai and N....
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....ishable goods are concerned, decision has to be taken by the authorities within ten days. The learned counsel also relied upon the judgment of this Court reported in (2005) 2 MLJ 246 : 2006 (205) ELT 9 (Mad) (Nivaram Pharma Pvt. Ltd. v. CEGAT, Madras) and contended that when effective alternate remedy is available, the writ petitions challenging the impugned orders cannot be entertained. He has also submitted that insofar as the orders passed by the authorities at Mumbai and New Delhi are concerned, this Court is not having territorial jurisdiction. The learned counsel also submitted that the appellate authority has got powers to grant stay and it is for the petitioner to make out a case by filing appeal for the grant of stay. 12. In reply to the said submission, Mr.P.S.Raman, learned Senior Counsel for the petitioner submitted that even though by virtue of the impugned orders the imported goods were released, unless the said orders are stayed, the petitioner cannot prevent the further import of similar goods and therefore the appeal remedy provided under the Customs Act, 1962, is not an effective alternate remedy and the writ petitions are maintainable, though there is an alter....
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....der Rule 3 notice can be issued, which reads as follows: "3. Notice by the right holder:- (1) A right holder may give notice in writing to the Commissioner of Customs or any Customs Officer authorised in this behalf by the Commissioner, at the port of import of goods infringing intellectual property rights in accordance with the procedures and under the conditions as set out in these Rules, requesting for suspension of clearance of goods suspected to be infringing intellectual property right. (2) The notice in respect of goods infringing intellectual property rights shall be given in the format prescribed in the Annexure to these Rules. (3) Every such notice shall be accompanied by a document as specified by the Commissioner, evidencing payment of application fee of Rs.2000 (two thousand rupees only). (4) If any of the information as required in the format under sub-rule (2) is not provided, the Deputy Commissioner of Customs or Assistant Commissioner of Customs may, as the case may be, ask the right holder or his authorised representative to provide the same within 15 days, which may be extended on sufficient reasons being shown. (5) The right holder shall inform....
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....ing days after having been informed, or within such extended period as may have been granted by the Commissioner at the request of the right holder, not exceeding another twenty working days, he shall be deemed to have concurred with the mode of disposal as proposed by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be: Provided further that the costs toward destruction, demurrage and detention charges incurred till the time of destruction or disposal, as the case may be, shall be borne by the right holder. (2) There shall not be allowed the re-exportation of the goods infringing intellectual property rights in an unaltered state. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, may on his own, or at the request of the right holder, retain samples of goods infringing intellectual property rights prior to their destruction or disposal and provide the same to the right holder or importer if such samples are needed as evidence in pending or future litigations." 17. Circular No.41/2007 dated 29.10.2007 was issued by the Government of India by giving instructions for implementation. The ....
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....t the impugned orders passed in W.P.No.9934 and 9935 of 2009, statutory appeal is provided under section 128 of the Customs Act, 1962, before the Commissioner of Customs (Appeals), Customs House, Chennai -1. Insofar as W.P.No.10264 of 2009 is concerned, statutory appeal is provided under section 129A of the Customs Act, 1962, before the Customs, Excise, Service Tax Appellate Tribunal, Mumbai. With regard to W.P.Nos.10432 of 2009 and 10730 of 2009 are concerned, statutory appeal is maintainable under section 128 of the Customs Act, 1962, before the Commissioner of Customs (Appeals), New Delhi. Section 128 of the Customs Act, 1962 reads as follows: "128. Appeals to Commissioner (Appeals).- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a....
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....292 (Arya Vyasa Sabha and Others v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Others) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court. (b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Another) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows: "19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K.Panda case ((1994) 5 SCC 304) was essentially a question of fact. ......" In paragraph 22, the Honourable Supreme Court further held as follows: "22. ...... a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers ((2001) 7 SCC....
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....dent to bypass the provision for appeal and approach the High Court directly by a writ petition under Articles 226 and 227 of the Constitution, challenging the decree/final order on the ground that the order earlier passed, refusing to permit the cross-examination of the deponent, was erroneous." (Emphasis Supplied) The Said view is reiterated by the Supreme Court in the decision reported in 2008 (8) Supreme 453 (State of U.P. & Another v. U.P.Rajya Khanij Vikas Nigam S.S. & Others). 24. When appealable order is passed, particularly when the facts are in dispute, writ petition filed under Article 226 of the Constitution of India without availing the alternate remedy is not maintainable is the consistent view taken by the Supreme Court and by this Court. (a) In the decision reported in 2008 AIR SCW 1815 (C.C.T.Orissa v. Indian Explosives Ltd.) the Supreme Court set aside the order passed in a tax matter and in paragraph 7 held thus, "7. The High Court seems to have completely lost sight of the parameters highlighted by this Court in a large number of Cases relating to exhaustion of alternative remedy. Additionally the High Court did not even refer to the judgment of anot....
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....tated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art.226 of the Constitution. But, then the Court must have good and sufficient reason to by pass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art.226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by ....
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....t by order dated 11.6.2008 held as follows: "2. These writ appeals have been filed challenging an order passed by the learned single Judge, dated 17.9.2007. Subject matter of the challenge was an order passed by the Assessing Authority under the Tamil Nadu General Sales Tax Act. We need to consider the merits of the case, as in view of the admitted position against the order of the Assessment Officer, statutory appeal is provided. We just remind ourselves of the repeated directions given by the Apex Court that in the Revenue matters, the Taxing Statute itself is a complete Code and the writ court should not ordinarily interfere unless the assessee had exhausted all his statutory remedies. 3. In view of this well settled principle, we direct the appellant to file an appeal within a period of three weeks from today before the Appellate Authority. ......." 25. In the decision reported in (2009) 2 SCC 630 (Mumtaz Post Graduate Degree College v. Vice Chancellor) it is held that availability of alternate remedy by itself may not be a ground for the High Court to refuse the exercise of its jurisdiction and it may exercise its writ jurisdiction if the alternate remedy would not be....