Madras High Court
T.Kannudurai vs / on 24 March, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.(MD) No.9164 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.(MD) No.9164 of 2020
and
W.M.P.(MD) Nos.8379 and 8380 of 2020
T.Kannudurai ... Petitioner
/vs./
1.The Commissioner (Appeals),
Office of the Commissioner Customs (Preventive),
1, Williams Road,
Cantonment, Trichy.
2.The Joint Commissioner (CCO),
Office of the Commissioner Customs (Preventive),
1, Williams Road,
Cantonment, Trichy.
3.The Assistant Commissioner of Customs,
Customs Division,
1, Williams Road,
Cantonment, Trichy. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, calling for the entire records pertaining to the
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W.P.(MD) No.9164 of 2020
impugned order issued by the 2nd respondent vide his proceedings in
C.No.VIII/10/188/2018-Cus.Adj. Dated 11.07.2019 and quash the same as illegal.
For Petitioner : Mr.R.H.Dhilipan Pandian
For Respondents : Mr.R.Aravindan
Senior Standing Counsel
ORDER
The petitioner has challenged the impugned order dated 11.07.2019 of the 2nd respondent/the Joint Commissioner (CCO), Trichy.
2.By the impugned order, the petitioner has been imposed penalty of Rs.4,50,00,000/- under Section 114(i) of the Customs Act, 1962. The writ petition has been filed long after the expiry of limitation. It is the case of the petitioner that the petitioner is a small time agriculturist and had rented out a small portion of the property, namely, the Shed, measuring an extent of 300 sq.fts., out of 1,000/- sq.,fts., to one K.Balamurugan and the remaining portion was given to one Kishore for a monthly rent of Rs.10,000/- from 2018 unaware of the fact that the said Kishore was involved in smuggling and export of tortoises from India. 2/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.9164 of 2020
3.It is submitted that the petitioner has not involved in any crime so as to warrant penalty under Section 114(i) of the Customs Act, 1962. It is submitted that the respondents have not discharged the burden of proof that the petitioner was engaged in illegal activities with the tenants and therefore the petitioner was not liable to penalty under Section 114(i) of the Customs Act, 1962. It is further submitted that the petitioner in his statement has also clearly explained that he had only heard that the tenant was using the property, which was rented out by the petitioner for storing turtles and tortoises. It is submitted that the impugned order passed by the 2nd respondent is not well reasoned and therefore deserves to be set aside.
4.Opposing the prayer, the learned Senior Standing Counsel for the respondents at the outset submits that the writ petition is liable to be dismissed on account of latches as it has been filed on 06.08.2020 long after the limitation for filing an appeal before the Appellate Commissioner had expired, in terms of Section 128 of the Act. The learned Senior Standing Counsel for the respondents further submits that the petitioner had himself admitted in his statement before the Director of Revenue Intelligence that he had rented out the premises to the said 3/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.9164 of 2020 Kishore for storing turtles and tortoises and therefore, the petitioner has been rightly imposed penalty under Section 114(i) of the Act.
5.It is further submitted that during the course of investigation, the Director of Revenue Intelligence/Zonal Unit Bangalore with the help of Officers of DRI Trichy and Customs Officers Trichy, made house search at the petitioner’s premises and recovered property documents relating to the godown/shed, from which the officers of DRI BZU recovered 1487 turtles/tortoises on 10.05.2018. The property documents revealed that the petitioner is the owner and having control over the aforesaid Shed.
6.The learned Senior Standing Counsel has placed reliance on the decision of the Hon'ble Supreme Court in Civil Appeal No.2413 of 2020 (Assistant Commissioner (CT) and othrs Vs. M/s.Glaxo Smith Kline Consumer Health Care Limited) dated 06.05.2020, wherein the Hon'ble Supreme Court has held as under:-
“15.From the aforesaid decisions, it is clear as crystal that the Constitution Bench in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, has ruled that there is no conflict of opinion in Antulay case [A.R. 4/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.9164 of 2020 Antulay v. R.S. Nayak, (1988) 2 SCC 602] or in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584] with the principle set down in Prem Chand Garg v. Excise Commr., AIR 1963 SC
996. Be it noted, when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy as has been held in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584]. As the pronouncement in Chhattisgarh SEB v.
Central Electricity Regulatory Commission, (2010) 5 SCC 23, lays down quite clearly that the policy behind the Act emphasising on the constitution of a special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by an order of the adjudicatory officer or by an appropriate Commission. The Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution.” 5/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.9164 of 2020
7.It is submitted that under Section 128 of the Act, there is a specific period of limitation with a further grace period of 30 days for filing an appeal. It is submitted that having failed to exercise the option under Section 128 of the Act, it is not open for the petitioner to approach this Court to quash the impugned order.
8.I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondents. I have also perused the impugned order dated 11.07.2019 of the 2nd respondent.
9.No doubt the petitioner has missed the statutory period of limitation prescribed under Section 128 of the Act. As per Section 128 of the Act, a statutory appeal has to be filed within a period of 60 days from the date of receipt of the order before the Appellate Commissioner. As per the proviso to Section 128(1) of the Act, a further grace period of 30 days is given to an assessee or a person aggrieved by the decision passed under the Act to file such appeal with an application to condone the delay.
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10.The power to condone the delay is now circumscribed under Section 128 of the Act. Therefore, the petitioner cannot file an appeal before the Appellate Commissioner beyond the statutory period of limitation. Even if such an appeal is filed, such appeal will be rejected in the light of the Assistant Commissioner's decision (referred supra). However, a reading of the impugned order and the statement of the petitioner make it clear that there is no admission of liability by the petitioner that the petitioner was conniving with the said Kishore and other exporters, who were engaged in export of turtles/tortoises contrary to the provisions of the Customs Act, 1962 and other enactments and Wildlife Protection Act, 1972 and CITES.
11.The statement of the petitioner dated 29.10.2018 merely admits that the petitioner had rented out a portion of the Shed to the said K.Balamurugan and Kishore for storing turtles and tortoises. There is no record to substantiate that the petitioner was aware that the storage of turtles and tortoises was either banned or that the petitioner was acting in connivance with the said Kishore and other persons, who were arrayed as co-noticees in the show cause notice dated 7/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.9164 of 2020 06.11.2018. The petitioner has admitted that he had rented out the premises for a sum of Rs.10,000/- per month.
12.The impugned order of the 2nd respondent merely records the above. It nowhere discloses that the petitioner was actively engaged in along with the other co-noticees to export turtles and tortoises in violation of Customs Act, 1962 and other enactments and Wildlife Protection Act, 1972 and cites. The imposition of penalty of Rs.4,50,00,000/- under Section 114(i) of the Customs Act, 1962 makes an appellate remedy illusory for a small time agriculturist, who may or may not be directly involved in the alleged smuggling of turtles and tortoises contrary to the provisions of the Customs Act, 1962, Wildlife Protection Act, 1972 and cites.
13.Penalty under Section 114(i) of the Customs Act, 1962 will apply where a person by his act or omission renders the goods liable for confiscation under Section 113 or abets the doing or omission of such an act. Merely because the petitioner had rented out the godown to the other co-noticees, ipso facto would not mean that the petitioner was actively abetted in the commission of the Act, it 8/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.9164 of 2020 would have rendered in the goods liable for confiscation. It is quite possible that the tenant was engaged in illegal activities, which would be violation of the Customs Act, 1962, Wildlife Protection Act, 1972, CITES and any other enactments. Imposition of penalty of Rs.4,50,00,000/- makes the appellate remedy illusory for a small time agriculturist, who had the misfortune of renting out the property to a person, who had actually indulged in illegal export. Therefore, I am inclined to set aside the impugned order, as far as the petitioner is concerned, and remit the case back to the 2nd respondent to pass fresh orders on merits and in accordance with law after ascertaining clearly as to whether the petitioner had indeed actively abetted in the commission of the offence, which attracted the provisions of the Customs Act, 1962, so as to attract penalty under Section 114(i) of the Customs Act, 1962.
14.Under these circumstances, the impugned order in C.No.VIII/10/188/2018-Cus.Adj. dated 11.07.2019 of the 2nd respondent is partly quashed as far as the petitioner is concerned and the case is remitted back to the 2nd respondent to pass a fresh order within a period of 60 days from the date of receipt of a copy of this order. The relief granted in this writ petition qua the 9/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.9164 of 2020 C.SARAVANAN, J.
mm petitioner will have no bearing on the independent decision already or decision that may be taken by the Tribunal in the appeals filed by the other co-noticees.
15.The writ petition stands partly allowed, in terms of the above observations. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 24.03.2022
Internet : Yes / No
mm
To
The Joint Commissioner (CCO),
Office of the Commissioner Customs (Preventive),
1, Williams Road,
Cantonment, Trichy.
W.P.(MD)No.9164 of 2020
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