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Uttarakhand High Court · body

2019 DIGILAW 49 (UTT)

Prem Singh v. Chief Commissioner Customs

2019-01-10

LOK PAL SINGH

body2019
JUDGMENT : LOK PAL SINGH, J. 1. This writ petition has been filed for the following reliefs: (i) Issue a writ, order or direction in the nature of certiorari calling for records and to quash the order in original no.244/S.Tax/HLD16 dated 30.12.2016 passed by Superintendent, Service Tax Cell, Division Haldwani i.e. respondent no.2, whereby the Superintendent, Service Tax, vide its order dated 30.12.2016 imposed the penalty of Rs.1,84,000/- upon the petitioner under section 77 of the Finance Act 1994. (ii) Issue a writ, rule, order or direction in the nature of certiorari to quash the process, if any issued by respondents under section 87 of the finance act of 1994 for recovery of central government dues and direct the respondents not to issue any other consequential direction in pursuance of aforesaid impugned order against the petitioner. (iii) Issue a writ, rule, order or direction in the nature of mandamus commanding and directing the respondents to forgive /waived the penalty imposed upon the petitioner under Section 77 of the Finance Act of 1994. (iv) Issue any other, other writ, rule, order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) Cost of petition may be awarded in favour of petitioners. 2. At the very outset, learned counsel appearing for the respondents would raise objection with regard to the maintainability of the writ petition and would submit that the petitioner has a statutory remedy of appeal u/s 85 of The Finance Act, 1994. He would further submit that in a similar controversy in WPMS No.2716 of 2018, the Coordinate Bench of this Court, has dismissed the writ petition on the ground of laches and alternative remedy. 3. Learned counsel for the petitioner would submit that there is no delay or laches on the part of the petitioner in filing the writ petition; the delay which has been occurred is due to the fact that the copy of order was never served upon him and it was received to the petitioner in the month of August 2018. Learned counsel would refer to paragraph no.9, 18 and 19 of the writ petition, which are extracted hereunder: “9. That it is respectfully submitted that the petitioner never received any notice from respondent authority. The respondent authority without informing the petitioner or without giving any opportunity of hearing imposed the penalty upon the petitioner. Learned counsel would refer to paragraph no.9, 18 and 19 of the writ petition, which are extracted hereunder: “9. That it is respectfully submitted that the petitioner never received any notice from respondent authority. The respondent authority without informing the petitioner or without giving any opportunity of hearing imposed the penalty upon the petitioner. It is a settled principle of law that no person can be punished without giving him any opportunity of hearing. 18. That it is submitted that the respondents neither supplied the copy of order in original dated 30.12.2016, nor supplied the copy of those documents, on the basis of which the respondents had reached in the conclusion to impose the penalty upon the petitioner. It is normal practice under law to supply the copy of order, by which any person being aggrieved, to that person. In absence of copy of any order, no person may be compel to comply/follow the order, but the respondents are pressurizing the petitioner without supplying him certified copy of order dated 30.12.2016. 19. That the respondents had not given any opportunity of hearing or defending himself before passing the order dated 30.12.2016 by which the respondents had imposed penalty under section 77 of the act. The law on penalty is very clear and it prescribes that no penalty can be imposed until or unless there should be apparent malice on the part of that person or institution. Thus the action of respondent is in violation of the established principles of Constitution of India as well as principle of natural justice.” 4. I have heard the rival submissions made by learned counsel for the parties and have also gone through the averments made in the writ petition. Though it is contended in the writ petition that the impugned order was never served upon the petitioner and it was in the month of August 2018 only when he could know about the said order, but it is nowhere stated in the writ petition as to on which date and by which mode he came to know about the impugned order. In the absence of any such plea, the Court observes that the impugned order was well within the knowledge of the petitioner from the very inception, but the petitioner slept over his rights for a considerable time and chose not to file statutory appeal within the period of limitation and now after expiry of period to file the appeal, the petitioner has filed the writ petition belatedly. In writ jurisdiction, factual controversy cannot be adjudicated. 5. In the light of aforesaid, writ petition lacks merit and is accordingly dismissed. No order as to costs.