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2016 DIGILAW 143 (GUJ)

Krishna Cleaning Agency v. Union of India

2016-01-20

AKIL ABDUL HAMID KURESHI, MOHINDER PAL

body2016
ORDER : Akil Abdul Hamid Kureshi, J. 1. Petitioners have challenged an order dated 12.10.2015 as at Annexure-G to the petition passed by the Commissioner (Appeals), Customs, Ahmedabad. Brief facts are as under: 2. Petitioner No. 1, M/s. Krishna Clearing Agency, is a partnership firm and would hereafter be referred to as "Krishna Clearing". Petitioners No. 2 and 3 are partners of Krishna Clearing. Petitioners No. 4 and 5 are its employees. The Customs Department had issued a common show cause notice to all the petitioners and one CONCOR CFS, a Customs clearing agent, why various penalties under the Customs Act be not imposed on them for the alleged acts of smuggling of cigarettes. The joint Commissioner of Customs by order dated 29.04.2015 dropped the proceedings initiated under the notice dated 28.04.2014. 3. It appears that, for whatever reason, the Department preferred appeal against the said order-in-original only against Krishna Clearing. The Commissioner (Appeals), therefore, took cognizance of such appeal only qua the partnership firm. To this aspect of the matter, there is no dispute. When the appeal was thus heard by the Commissioner (Appeals), the only respondent, Krishna Clearing, was duly represented by legal representative and detailed submissions were made. The Commissioner (Appeals), however, by the impugned order dated 12.10.2015, recorded his opinion and findings with respect to the culpability not only of Krishna Clearing but also all other notices of such show cause notice. Having recorded his final findings on various relevant aspects of the matter, he remanded the proceedings to the Commissioner for fresh decision since, in his opinion, full facts were not available on the record. Relevant portion of the order of the Commissioner (Appeals) reads as under: "6.7 The allegations made in the Show Cause Notices are confirmed. (i) The goods i.e. 68630 kgs. of Heavy Melting Scrap, contained in the Container Numbers (I) BAXU 2600877 (ii) BAXU 2620512 (iii) BAXU 2620512 (iv) BAXU 3600784 valued at Rs. 15,37,090/- (Rupees Fifteen Lakhs Thirty Seven Thousand Ninety only), are liable for confiscation under the provisions of Section 111(d),111(m) and 111(n) read with Section 119 of the Customs Act, 1962. The Lower Authority will however decide for reasons recorded in writing, whether the goods are required to be absolutely confiscated or redeemable on payment of appropriate redemption fine, to be fixed in the facts and circumstances of the case. The Lower Authority will however decide for reasons recorded in writing, whether the goods are required to be absolutely confiscated or redeemable on payment of appropriate redemption fine, to be fixed in the facts and circumstances of the case. (ii) M/s. Krishna Clearing Agency are also liable penalty under Section 114(A) of the Customs Act, 1962. (iii) Truck Trailers bearing Registration No. GJ 12-Z-4455 (having valued as Rs. 9,50,000/-), GJ-12-Y-8001 (having valued as Rs. 6,00,000/-), GJ-12-Y-7002 (having valued as Rs. 6,00,000/-) & GJ-12W-7606 (having valued as Rs. 3,50,000/-) are liable for confiscation under section 115(2) of the Customs Act, 1962. (iv) CONCOR, Gandhidham and M/s. Krishna Clearing Agency, Gandhidham are liable for penalty under section 112(1) of the Customs Act, 1962 read with Section 45 ibid and Regulation Goods Imported (Conditions of Transhipment) Regulation, 1995 and Handling of Cargo in Customs Areas Regulations, 2009. (v) Shri K.M. Thakkar, Pankaj Thakkar, both partners of M/s. Krishna Clearing Agency, Gandhidham and Shri Jitesh Thakkar and Shri Prakash Dana, both employees of M/s. Krishna Clearing Agency, Gandhidham, are liable to penalty under section 112(1)(b) of the Customs Act, 1962. 6.8 I would like to state that this is an exceptional case where the entire facts are not available on record and therefore, I find remitting of the case with suitable directions for de novo decision, becomes sine qua non to meet the ends of justice..." ... ... ... ... ... ... "ORDER 7. The Order No. KDL/JC/RMG/01/2015 dated 29.04.2015 of the lower authority is set aside with a direction that the adjudicating authority will impose penalties along with confiscation & appropriate redemption fine (if any), keeping in view the above findings & observations. While carrying out adjudication, the gravity of the offence & modus operandi, may be taken into consideration. Appeal is disposed of in the above terms." 4. This order is challenged by the petitioners on two grounds. The first ground urged by the counsel for petitioners is that the Commissioner(Appeals) could not have allowed the appeal and reversed the order of the Commissioner dropping the show cause notice proceedings qua the noticees other than Krishna Clearing since the Departmental appeal was confined only to the said clearing agency. The second ground raised by the counsel for petitioner was that, even with respect to Krishna Clearing, the Commissioner(Appeals) failed to take into account the contentions and authorities cited before the appellate Commissioner. The second ground raised by the counsel for petitioner was that, even with respect to Krishna Clearing, the Commissioner(Appeals) failed to take into account the contentions and authorities cited before the appellate Commissioner. His order was, therefore, illegal. 5. On the other hand, learned counsel Ms. Vaibhavi Nanavaty for the Department firstly contended that, against the order of Commissioner(Appeals), statutory appeal lies before the Tribunal. She further submitted that the order of Commissioner(Appeals) is a speaking order and, therefore, calls for no interference in exercise of the writ jurisdiction. 6. With respect to petitioner No. 1-Krishna Clearing, we are not inclined to entertain this petition in view of availability of alternative statutory remedy. We would relegate petitioner No. 1 to such remedy before the Tribunal. If such an appeal is filed latest by 10.02.2016, considering the fact that Krishna Clearing was before the High Court pursuant to its remedies, such appeal would not be dismissed on the ground of limitation. 7. With respect to rest of the petitioners, facts are not serious in dispute. The Commissioner having dropped the show cause notice proceedings qua these petitioners, the Department had not appealed against such order in their cases. The Departmental appeal was confined only to Krishna Clearing. The Commissioner(Appeals) in absence of other noticees could not have disturbed the order of Commissioner. Firstly, without any appeal being filed by the Department, it is questionable whether the Commissioner could have taken such a step. Secondly, in any case, without any notice, the other noticees had earned the verdict of dropping the proceedings. The appellate Commissioner could not have disturbed such order which would be plainly opposed to the principles of natural justice. 8. Under the circumstances, qua petitioners No. 2 to 5 the impugned order dated 12.10.2015 is quashed. We make it clear that this is not on merit of the issues involved and merely on the grounds of non-hearing of the concerned petitioners and on the appellate Commissioner having passed an order against the parties who were not respondents before him. Petition is disposed of in the above terms.