Calcutta High Court
Sanjay Danchand Ghodawat vs Additional Commissioner Of on 11 September, 2013
Author: Harish Tandon
Bench: Harish Tandon
ORDER SHEET
W.P.No.830 of 2013
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SANJAY DANCHAND GHODAWAT
Versus
ADDITIONAL COMMISSIONER OF
CUSTOMS(PORT),KOL & ORS
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 11th September, 2013.
Appearance:
Mr.J.P.Khaitan,Sr.Advocate
Mr.Arijit Chakraborty,Advocate
Mr.B.Dutta,Advocate
...for petitioner.
Mr.R.Bharadwaj,Advocate
Mrs.Santa Mitra,Advocate
...for respondents.
The Court : An interesting point has evolved in this writ petition as to whether the adjournment could be restricted only when an opportunity of hearing is demanded by the assessee under section 122A of the Customs Act, 1962.
According to the petitioner, after receiving the show cause notice an adjournment was sought on the plea that the petitioner intends to approach the 2 Settlement Commission. The said letter was received by the adjudicating authority on 8.3.2013 whereas the next date was fixed on 12.3.2013.
Admittedly, thereafter no date is fixed by the adjudicating authority, only the final order is passed on June 11,2013.
The petitioner contends that the precondition deposit for approaching the Settlement Commission was made but the application could not be filed for the reasons as would reveal from paragraph-16 of the writ petition. The petitioner says that section 122A of the Customs Act empowers the adjudicating authority to grant adjournment upon recording the reasons upto three times during the proceedings. Adjournment was sought on third occasion. The authorities neither communicated any order rejecting the said application for adjournment nor issued any further notice indicating further dates being fixed in this regard but proceeded to decide the matter without giving an opportunity of hearing to the petitioner or notifying the date of next hearing.
The respondent in turn disputes the aforesaid contention and says that sub-section 2 of Section 122A of the Customs Act can be invoked only when the provisions contained in sub-section 1 is satisfied.
According to the respondent, the petitioner did not make an application indicating its desire to have a personal hearing and therefore, neither sub-section 2 nor proviso appended thereto at all be made applicable in the present case.
As a second limb of objection, the respondent says that the order assailed in this writ petition is appealable under section 128 of the Customs Act and therefore, writ is not entertainable because of the alternative efficacious remedy. 3
The respondent further contends that the documents would sufficiently indicate that much time was given to the petitioner to submit the reply but he chose not to file it nor upon enquiry any application before the Settlement Commission was filed by the petitioner. According to the respondent, the authorities had no other option but to proceed to decide the matter.
There is no dispute that show cause notice is required to be issued before the confiscation of the goods under section 124 of the Customs Act. The provisions contained therein further provide for a reasonable opportunity of hearing without being qualified with any word that it could only be given if the party so desires which is apparent from the language employed in sub-section 1 of section 122A of the said Act.
This Court feels that the question whether an opportunity of hearing was given to the petitioner or the conduct of the respondent authorities is such which amounts to the violation of the principles of natural justice, requires to be considered upon exchange of affidavits.
Let affidavit in opposition be filed within 3rd October, 2013. Affidavit in reply thereto be filed within one week after Puja Vacation. Let this matter appear one week after Puja Vacation.
So far as the interim order is concerned, Mr. Khaitan has brought to the notice of this Court that the duty as well as the interest has already been deposited by his client and if interim protection is not granted till the disposal of the writ petition relating to the payment of penalty and fine it would cause irreparable loss and injury. This Court have already indicated that a prima facie case has been made out and therefore, the petitioners are entitled to interim 4 protection. The respondents are restrained from taking any step and/or coercive measures for realization of the penalty as well as the fine in terms of the order dated June 11, 2013 till three weeks after Puja Vacation or until further order whichever is earlier.
(HARISH TANDON, J.) ssaha AR(CR)