ANDE KIRAN KUMAR V. THE COMMISSIONER OF CUSTOMS

WP/16904/2023

AI Insights

The case involves a writ petition filed by Ande Kiran Kumar, Ande Srikanth, and Ande Babu Rao challenging an Order-in-Original issued by the Additional Commissioner of Customs, Vijayawada, which confiscated 2779.500 grams of gold. The petitioners argued that the statutory remedy of appeal was rendered meaningless due to the requirement of a heavy pre-deposit, which they claimed justified bypassing the appeal process in favor of a writ petition. The respondents, represented by the CBIC, contended that the writ petition was not maintainable due to the availability of an alternative statutory remedy. The court, referencing various precedents, held that the existence of an alternative remedy is a bar to the writ petition, except in exceptional circumstances, which were not present in this case.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 690648 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 05-11-2024
• Assessment Year: misc
• Other Referred Cases: Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, Rashid Ahmed v. Municipal Board, Kairana, K.S. Rashid & Son v. Income Tax Investigation Commission, State of U.P. v. Mohd. Nooh, Collector of Customs v. Ramchand Sobhraj Wadhwani, Calcutta Discount Co. Ltd. v. ITO, Companies Distt.
• Laws Referred To: Article 226 of the Constitution of India, Section 128(1) of the Customs Act, 1962
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: B V S CHALAPATI RAO; Y N VIVEKANANDA
• Assessee Lawyers: C BABA
• Keywords: Customs; Jurisdiction; Pre-deposit; Statutory remedy; Writ of Certiorari
• Section: 226; 128(1)

Judgement Text

"IN THE HIGH COURT OF ANDHRA PRADESH :: (Special Original Jurisdiction) TUESDAY ,THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE G.NARENDAR AMARAVATI -0 AND THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR WRIT PETITION NO: 16904 OF 2023 Between: 1. Ande Kiran Kumar, S/o, Ande Babu Rao 11-442/D, NCC Road, Mangalagiri, Guntur District Aged about 35 Years, D. No. Andhra Pradesh 522 503 2. Ande Srikanth, S/o. Ande Babu Rao 442/D, NCC Road, Mangalagiri, Guntur District Aged about 37 Years, D. No. 11- Andhra Pradesh - 522 503 3. Ande Babu Rao, S/o. Ande T Road, Mangalagiri, Guntur District, Andhra Pradesh Parasuramulu, D. No. 11-442/D, NCC j-522 503 ...PETITIONERS^ AND 1. The Commissioner Of Customs, Customs Commissionerate Autonagar, Vijayawada - Preventive 55-17-3, C-14, 2nd Floor, Industrial Estate 520007 2. The Additionai Commissioner of Customs, O/o. The Commissioner of Customs Preventive, 2nd Fioor, Staiin Corporate Buiiding, industriai Estate, Auto Nagar, Vijayawada 520007. fi 3. The Superintending of Customs, O/o. The Customs Commissionerate Preventive, D.No. 55-173, C14, 2nd Floor, Industrial Estate, Autonagar, Vijayawada NTR District, Andhra Pradesh - 520007. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in may the circumstances stated in the affidavit filed therewith, the High Court be pleased to a)Call for the records culminating in the Order- In - Original No. VJD CUSTM -PRV -ADC -001 -2023-24 issued in C.No GEN/ADJ/ADC /1079 /2022 ADJN- 0/0 COMMR-CCP Vijayawada, DIN 2023 0455MK000000FFFF dated 17-04-2023 issued by the Respondent 2/Office of the Commissioner of Customs (Preventive), Industrial Estate, Autonagar, Vijayawada, dated. 17.04.2023 wherein, the Respondent No. 2 viz., the Additional Commissioner of Customs, Vijayawada, b) quash the same by issuance of a Writ, more particularly one in the nature of a Writ of Certiorari or any other appropriate Writ, Order or Direction, while declaring that the same is wholly without jurisdiction. No. Autonagar Circle, lA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the impugned Order-ln-Origin al No. VJD-CUSTM-PRV-ADC-001-2023-24 issued in C.No GEN /ADJ/ADC /1079/ 2022-ADJN-0/0 COMMR-CCP Vijayawada, DIN 2023 0455MK000000FFFF dated 17-04-2023 issued by the Respondent Commissioner of Customs (Preventive) No. 2/Office of the Industrial Estate, Autonagar, Vijayawada, dated. 17.04.2023 wherein, the Respondent No. 2/Additional Commissioner confiscated Customs, Autonagar Circle, Vijayawada, handover the gold of 2779.500 grams or pay the money equallant to the value of the gold against an undertaking or personal guarantee pending disposal of the Writ Petition. Counsel for the Petitloner(s): SRI. C SRINIVASA BABA Counsel for the Respondent Nos.1 to 3: SRI B V S CHALAPATI RAO The Court made the following: ORDER HONOURABLE SRI JUSTICE G. NARENDAR AND HONOURABLE SRI JUSTICE T.C.D. SEKHAR WRIT PETITION No.16904 of 2023 ORDER: (per Hon’ble Sri Justice G. Narendar) Heard Sri C. Srinivasa Baba, learned counsel for the petitioners, and Sri Y.N. Vivekananda, learned Senior Standing Counsel for CBIC appearing for the respondents. 2. The petitioners are calling in question the Order-in-Original dated 17.04.2023 passed by the Additional Commissioner of Customs, Office of the Commissioner of Customs (Preventive), Government of India, at Vijayawada. At the outset, learned Senior Standing Counsel for CBIC 3. raises a preliminary objection regarding the maintainability of the writ petition, as a statutory right of appeal is vested in the petitioners under Section 128(1) of the Customs Act, 1962. Learned counsel for the petitioners would submit that the 4. availability of alternative remedy is not a bar and that the statutory remedy of appeal is rendered meaningless in view of pre-deposit of heavy sums required to be made at the time of preferring the appeal. The case of the Department is as follows; The officers of the 5. Department intercepted a car with registration No.AP37CB2525 / GN,J&TCDS,J W.P.No.16904 of 2023 while passing through Bollapalli Toll Plaza on 24.06.2022 and found one Ande Kiran Kumar (petitioner No.1 herein) along with one Jirra Subba Rao, hired driver, travelling in the car. Upon questioning, petitioner No.1 admitted to carrying gold concealed in a box fitted in the back seat and failed to produce any bills concerning the said gold. The officers of the Department continued the process, in which the statements of the occupants were recorded, seizure of 2779.500 grams of gold was effected and petitioner No.1 was apprehended. Subsequently, petitioner Nos.2 and 3, the brother and father of petitioner No.1 respectively, submitted letters to the Department claiming ownership of parts of the seized gold and thereupon, their statements were also recorded. Thereafter, a show-cause notice dated 20.12.2022 came to be issued to the petitioners. On receipt of reply and after affording an opportunity of hearing, the impugned Order-in-Original dated 17.04.2023 came to be passed. Admittedly, against the impugned Order-in-Original, the petitioners have an efficacious alternative remedy by way of an appeal. The appeal provision being an efficacious statutory remedy, this Court, in the exercise of its powers under Article 226 of the Constitution, would normally refrain from entertaining a writ petition, except in certain contingencies, such as, when the petition seeks the 6. ( 1 ■I- 3 GN,J&TCDS,J W.P.No.l6904of 2023 enforcement of fundamental rights, where there is a violation of the principles of natural justice, where the order or proceedings are wholly without jurisdiction or where the wres of an Act are challenged, as enunciated by the Hon'ble Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai^ Relevant paragraphs of the said judgment read as under: The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 14. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without 15. ^ (1998) 8 see 1 V. GN,J&TCDS,J W.P.No.l6904of 2023 jurisdiction or the virus of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. Rashid Ahmed v. Municipal Board, Kairana (AIR 1950 SC 163) laid down that existence of an adequate legal remedy ivas a factor to be taken Into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission (AIR 1954 SC 207) which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, \"unless there are good grounds therefor\", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. 16. A specific and clear rule was laid down in State ofU.P. v. Mohd. Nooh (AIR 1958 SC 86) as under: \"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and Instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had otheradequatelegalremedies.\" This proposition was considered by a ‘ Constitution Bench of this Court in A.V. Venkateswaran, 17. 18. / / 5 GN,J&TCDS,J W.P.No.l6904of 2023 Collector of Customs v. Ramchand Sobhraj Wadhwani (AIR 1961 SC 1506) and was affirmed and followed in the following words: \"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court\". Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. (AIR 1961 SC 372) laid down : 19. \"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an V 6 GN,J&TCDS,J W.P.No.16904 of 2023 order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without Jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without Jurisdiction under Section 34, Income Tax Act\". Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though oid, continue to hold the field with the resuit that law as to the Jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the aiternative statutory remedies, is not affected, specialty in a case where the authority against whom the writ is filed is shown to have had no Jurisdiction or had purported to usurp Jurisdiction without any legai foundation. ” 20. 7. In the instant case, the petitioners cite the requirement of pre deposit of large sums of money at the time of filing of the appeal, as a ground for not availing themselves of the statutory remedy of appeal. It is pertinent to note that the provisions regarding pre-deposit at the time of filing of the appeal have received a seal of approval at the hands of the Hon’ble Apex Court. Hence, the same cannot be accepted as a ground for entertaining the writ petition. The T A 7 GN,J&TCDS,J W.P.No.16904 of 2023 grounds urged by the petitioners for not availing the alternative remedy do not appeal to this Court and do not fall within the exceptions as settled by the Hon’ble Apex Court. In that view of the matter, the writ petition is disposed of by granting liberty to the petitioners to avail themselves of the statutory remedy of appeal. In the event an appeal is preferred within two weeks from the date of receipt of a copy of this order, the same shall not be rejected by the appellate authority on the ground of limitation. In the event any application for waiver of pre-deposit is made, the same be considered by the appellate authority sympathetically. 8. 9. As a sequel, pending interlocutory applications, if any, shall stand closed. There shall be no order as to costs. j //TRUE COPY// Sd/- M SRINIVAS assistant registrar s^error^oFFicER To 1. The Commissioner of Customs, Customs Commissionerate Preventive 55-17-3, C-14, 2nd Floor, Industrial Estate, Autonagar, Vijayawada - 520007 2. The Additional Commissioner of Customs, O/o. The Commissioner of Customs Preventive, 2nd Floor, Stalin Corporate Building, Industrial Estate, Auto Nagar, Vijayawada 520007. 3. The Superintending of Customs, O/o. The Customs Commissionerate Preventive, D.No. 55-173, C14, 2nd Floor, Industrial Estate, Autonagar, Vijayawada NTR District, Andhra Pradesh - 520007. 4. One CC to Sri. C Srinivasa Baba, Advocate [OPUC] 5. One CC to Sri. B V S Chalapati Rao, Advocate [OPUC] 6. One CC to Sri Y N Vivekananda, SC for CBIC [OPUC]. 7. THREE CD Copies HIGH COURT A TL DATED:05/11/2024 ORDER WP.No.16904 of 2023 ANO«^ 3 0 DEC 202'i . Current Section spatcv'^Sp^ 1