Disposed¶25

Nasim Aktar Choudhury v. the Union of India and 5 Ors.

Gauhati HC16 Mar 2025WP(C)/1473/2025

Case brief

AI extract

What is this about?

Alternative remedy doctrine; maintainability of Article 226 writ against appealable customs orders; Section 129A Customs Act, 1962 appeal to CESTAT Calcutta; condonation of delay before Appellate Tribunal; Order-in-Original and Order-in-Appeal under challenge; Gauhati High Court WP(C)/1473/2025, Nasim Aktar Choudhury v. Union of India, decided 17.03.2025 by Manish Choudhury, J.; writ petition not entertained with liberty to pursue statutory appeal.

What did the court decide?

Writ petition not entertained at this stage; liberty reserved to the petitioner to prefer an appeal under Section 129A of the Customs Act, 1962 before the Customs, Central Excise & Service Tax Appellate Tribunal at Calcutta, with an application for condonation of delay, to be considered by the Tribunal in accordance with law and on its own merits. ¶25

Nasim Aktar Choudhury Vs the Union of India and 5 Ors. — Customs and Excise | Gauhati HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether a writ petition under Article 226 of the Constitution against an appealable Order-in-Original dated 23.02.2024 and Order-in-Appeal dated 30.10.2024 should be entertained where an adequate, alternative and efficacious statutory remedy of appeal lies before an Appellate Tribunal having the power to condone delay.

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Court's answer

Relying on the cited Supreme Court and Gauhati High Court decisions, the writ petition against the appealable Order-in-Original dated 23.02.2024 is not entertained at this stage, since an adequate, alternative and efficacious statutory remedy of appeal is available before the Appellate Tribunal.

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Ratio / Principle

Liberty is reserved to the petitioner to avail the statutory remedy of appeal under Section 129A of the Customs Act, 1962; since the normal period of limitation has expired, the petitioner may file an application before the Appellate Tribunal showing cause for the delay in presenting the appeal.

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Key takeaways

If the petitioner prefers an application for condonation of delay along with the appeal, the Appellate Tribunal shall consider the same in accordance with law and on its own merits.ratio¶25

Detailed headnote1 paragraphs

Gauhati High Court (Manish Choudhury, J.), 17.03.2025 — Writ petition under Article 226 challenging an Order-in-Original dated 23.02.2024 (Joint Commissioner of Customs [Preventive], N.E.R., Shillong) and an Order-in-Appeal dated 30.10.2024 (Commissioner [Appeals], CGST, Central Excise and Customs, Guwahati) was not entertained at the threshold. Following the Supreme Court line of decisions (Commercial Engineers and Body Building Company; Commercial Steel; Greatship [India]) and Division Bench / Single Bench decisions of the Gauhati High Court, the Court held that where an adequate, alternative and efficacious statutory remedy of appeal lies before an Appellate Tribunal empowered to condone delay, a writ petition under Article 226 is not ordinarily entertained. Liberty was reserved to appeal to CESTAT, Calcutta under Section 129A of the Customs Act, 1962 read with Rule 6 of the Customs [Appeals] Rules, 1982, with a condonation-of-delay application since limitation had expired; the Tribunal to decide in accordance with law and on merits.

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GAHC010049792025

2025:GAU-AS:2861

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/1473/2025

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NASIM AKTAR CHOUDHURY

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S/O LATE SIRAJUDDIN CHOUDHURY, R/O VILL- BONGRAM, BAGHABAZAR, DHOLAI, DIST- CACHAR, PIN-788120

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VERSUS

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THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE DEPT OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS, MINISTRY OF FINANCE, GOVT OF INDIA, NEW DELHI-110008

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2:THE COMMISSIONER OF APPEALS CGST CENTRAL EXCISE AND CUSTOMS 3RD FLOOR GST BHAWAN KEDAR ROAD MACHKHOWA GHY-01

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3:THE COMMISSIONER OF CUSTOMS PREVENTIVE 110 MAHATMA GANDHI ROAD NER SHILLONG-793001 MEGHALAYA 4:THE ADDITIONAL COMMISSIONER OF CUSTOMS PREVENTIVE N.E.R. SHILLONG-793001 MEGHALAYA 5:THE JOINT COMMISSIONER OF CUSTOMS PREVENTIVE SHILLONG

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MEGHALAYA

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6:SUPERINTENDENT PREVENTIVE CUSTOMS PREVENTIVE DIVISION GUWAHATI 13 NILMONI PHUKAN PATH SREE NAGAR GUWAHATI ASSAM-78100

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Advocate for the Petitioner : MS S S ZIA,

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Advocate for the Respondent : SC, CUSTOMS, SC, GST

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 17.03.2025

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Heard Ms. S.S. Zia, learned counsel for the petitioner and Ms. M. Deka, learned counsel representing Mr. S.C. Keyal, learned Standing Counsel, Customs for all the respondents.

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The petitioner has instituted the instant writ petition under Article 226 of the Constitution on being aggrieved by an Order-in-Original dated 23.02.2024 passed by the Joint Commissioner of Customs [Preventive], N.E.R., Shillong and an Order-in-Appeal dated 30.10.2024 passed by the Commissioner [Appeals], CGST, Central Excise and Customs, Guwahati. The Order-in-Appeal dated 30.10.2024 is appealable under Section 129A of the Customs Act, 1962 read with Rule 6 of the Customs [Appeals] Rules, 1982 to the Customs, Central Excise & Service Tax Appellate Tribunal at Calcutta.

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The Hon’ble Supreme Court of India in a line of decisions including The State of Madhya Pradesh and another vs. M/s Commercial Engineers and Body Building Company Limited, [2022] SCC Online SC 1425; The Assistant Commissioner of State Tax and others vs. M/s Commercial Steel Limited, [2021] SCC Online SC 884; The State of Maharashtra and others vs. Greatship [India] Limited, [2022] 4 S.C.R. 840 ; the Hon’ble Division Bench of this Court in Writ Appeal no. 188 of 2022 [M/s Sailaja Commercial Construction Private

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Limited vs. the Union of India and others] and this Court in Writ Petition [C] no. 7378/2023 [M/s Brahmaputra Television Network vs. The Union of India and others] have observed that when an adequate, alterative and efficacious statutory remedy of appeal is available and the appeal lies before an Appellate Tribunal having the power to condone any delay then a writ petition under Article 226 of the Constitution is not ordinarily to be entertained.

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In the above view of the matter, the instant writ petition preferred against an appealable Order-in-Original dated 23.02.2024 is not entertained at this stage, reserving the liberty to the petitioner to avail the statutory remedy of appeal provided under Section 129A of the Customs Act, 1962, as amended. As the normal period of limitation has expired in the meantime, the petitioner is at liberty to prefer an application before the Appellate Tribunal showing cause as to why the appeal could not be presented within the statutory period of limitation. It is observed that in the event such an application for condoning the delay and an appeal are preferred by the petitioner, the Appellate Tribunal shall consider the same in accordance with law and on its own merits.

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Comparing Assistant

Nasim Aktar Choudhury v. the Union of India and 5 Ors.

Case brief

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Nasim Aktar Choudhury v. the Union of India and 5 Ors.

Case brief

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What the court decided

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