This judgment dismisses three connected writ petitions challenging a Customs order that revoked a shipping agent's registration and imposed penalties. The Court held that the Appellate Tribunal remedy under Section 129A of the Customs Act is efficacious and adequate, dismissing the petition without adjudicating the merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940
WP(C).No. 302 of 2019
PETITIONER/S:
BY ADVS. SRI.P.G.JAYASHANKAR SHEBA RIVY SIMON SMT.LINTA VARGHESE SMT.T.S.LIKHITHA
RESPONDENT/S:
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2019, ALONG WITH WP(C).720/2019, WP(C).41088/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940
WP(C).No. 720 of 2019
: PETITIONER/S
BY ADV. SMT.AMRIN FATHIMA
: RESPONDENT/S
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BY ADV. SRI.RAJESH B., SC, CENTRAL BOARD OF EXCISE & CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2019, ALONG WITH WP(C).302/2019, WP(C).41088/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940
WP(C).No. 41088 of 2018
: PETITIONER/S
M/S MBK LOGISTIX PRIVATE LIMITED, 39/6720-H, BAB TOWER, MG ROAD, KOCHI-682015, REPRESENTED BY ITS SENIOR MANAGER AND POWER OF ATTORNEY HOLDER SANTHOSH KUMAR, AGED 58, S/O P.J. WILLIAMS, RESIDING AT PUTHENPURACKAL HOUSE, VELI ROAD, H. NO.9/355 D, FORT COCHIN-682001.
BY ADV. SRI.P.G.JAYASHANKAR
: RESPONDENT/S
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BY ADV. SRI.RAJESH B., SC, CENTRAL BOARD OF EXCISE & CUSTOMS
OTHER PRESENT:
AAG SRI. K.M. NATRAJ., CGC CMT. CG. PREETHA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2019, ALONG WITH WP(C).302/2019, WP(C).720/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
[ WP(C) 302/2019 ,WP(C).720/2019, WP(C).41088/2018 ]
The petitioner in WP(C) No.41088 of 2018 is a Company. The
principal respondents in that writ petition are the Customs Department and its officials. The Company filed this writ petition challenging the Ext.P13 show cause notice. This Court on 18th December 2018 permitted the petitioner to reply to the show cause notice and, then, the authorities to adjudicate the issue.
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documents filed in WP(C) No.302 of 2019, besides referring to those in WP(C) No.720 of 2019 only if the clarity demands.
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reference to the merits is inevitable; that a pure question of law cannot be argued in vacuum. Only to contextualize the issues, have they, the counsel maintain, adverted to the merits, too. But I refer to the minimum facts to ascertain or to determine the preliminary issue of maintainability.
(3) the Departmental bias has been writ large across the impugned order.
the show cause notice has referred to many documents, the petitioners have been given access to only a few. Then, confronted with the case file,
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the counsel have, however, submitted that the Department supplied the petitioners all the twenty four documents referred to in the show cause notice. But the “background documents” which supported those twenty four documents, such as the records maintained by the Department, have not been given access to.
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that, as the petitioner's registration already stands revoked, before the Tribunal could adjudicate the issue, it would be many more months and, by then, the petitioner Company would suffer extreme hardship on every count, including the financial one.
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show cause notice has not conformed to the minimum requirements, such as spelling out the details; it falls short of procedural requirements. It violates the principles of natural justice, too. To support her contentions, she has relied on Kothari filaments and Another v. Commissioner of Customs (Port), Kolkata and Others1 , Oryx Fisheries Private Limited v. Union of India2 , Mars Shipping Services v. Commissioner of Customs (Seaport-Import)m Chennai3 , Siemens Ltd. v. State of Maharashtra4 , Bhola Singh v. Collector of Customs (Preventive)5 , Akash International v. Commissioner of Customs, Kolkata6 .
India, for the Customs Department, has submitted that the petitioners have an efficacious alternative remedy. He agrees denial of an opportunity is a threshold issue and it amounts to violating the principles of natural justice. But an opportunity given, if the aggrieved person still complains
about the lapses in the course of that opportunity, according to him, it is a
1 2009 (2) SCC 192
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matter to be adjudicated by a competent forum, rather than by this Court in its summary dispensation.
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adverting to the merits, the Company and its employees, prima facie, face
a grave allegation of fabricating the documents and falsifying the records.
I reiterate it is only an allegation, though.
relevant, reads:
129A Appeals to the Appellate Tribunal
(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order-
(a) a decision or order passed by the [Principal Commissioner of Customs or Commissioner of Customs] as an adjudicating authority;
(b) an order passed by the [Commissioner (Appeals)] under section 128A;
(c) an order passed by the Board or the [Appellate Commissioner of Customs] under section 128, as it stood immediately before the appointed day;
(d) an order passed by the Board or the [Principal Commissioner of Customs or Commissioner of Customs], either before or after the appointed day under section 130, as it stood immediately before that day:
[PROVIDED that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,-
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covers the issue before us. To that extent, I must accept the Department's contention that the petitioners have an alternative remedy.
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at the Bar, she has made exceptional efforts, well complemented by Sri Jayasankar, who is known for his industry and research.
I may have to examine the precedents the petitioners’ counsel cited.
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judicial authority, while exercising its statutory power, must act fairly, even when initiating show-cause proceedings. Then it quotes with approval Kem Chand v. Union of India7 , a Constitution Bench decision, to affirm that at the stage of show-cause the person proceeded against must be told about the charges against him so he can take his defense. It is obvious that while issuing the charge sheet, the authorities cannot articulate definite conclusions of a person's alleged guilt. If that is done, the entire proceedings initiated by the show-cause notice get vitiated by unfairness and bias, for the subsequent proceedings become an idle sermon.
7 AIR 1958 SC 300
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As a result, without adverting to the merits, I dismiss the writ
petitions leaving it open for the petitioners to pursue their remedies before the appellate authority.
DAMA SESHADRI NAIDU
JUDGE
Das/css
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APPENDIX OF WP(C) 302/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE MANAGING DIRECTOR OF THE PETITIONER COMPANY IN FAVOUR OF THE SENIOR MANAGER.
EXHIBIT P2 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER COMPANY.
EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO.110/2003-CUS DATED 22.12.2003.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.30/2004-CUS DATED 22.12.2003.
EXHIBIT P5 TRUE COPY OF THE IMPORT MANIFEST (VESSELS) REGULATIONS, 1971.
EXHIBIT P6 TRUE COPY OF THE EXPORT MANIFEST (VESSELS) REGULATIONS, 1976.
EXHIBIT P7 TRUE COPY OF THE NOTIFICATION NO.38/2018-CUS (N.T) DATED 11.5.2018 (SEA CARGO MANIFEST AND TRANSHIPMENT REGULATIONS, 2018), WITHOUT ANNEXURE, ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ORDER BEARING F.NO.S25/67/2018-1&B. CUS DATED 26.11.2018 ISSUED BY THE 4TH RESPONDENT.
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EXHIBIT P9 A TRUE COPY OF THE WRIT PETITION NO.38764 OF 2018, FILED BY THE PETITIONER (WITHOUT ITS EXHIBITS). EXHIBIT P10 A TRUE COPY OF THE COUNTER AFFIDVIT IN WPC NO.38764/2018 FILED BY THE 4TH RESPONDENT HEREIN (WITHOUT ITS EXHIBITS). EXHIBIT P11 A TRUE COPY OF THE JUDGMENT DATED 5.12.2018 IN WPC NO.38764/2018 OF THIS HON'BLE COURT. EXHIBIT P12 A TRUE COPY OF THE EMAIL DATED 12.12.2018 ISSUED TO THE 4TH RESPONDENT ALONG WITH THE TRAILING MAIL. EXHIBIT P13 A TRUE COPY OF THE NOTICE BEARING F.NO.SIIB/MISC/44/2018-CUS DATED 10.12.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P14 A TRUE COPY OF THE REQUEST DATED 13.12.2018 SEEKING ISSUANCE OF CLEAR AND LEGIBLE COPIES OF THE RELIED UPON DOCUMENTS. EXHIBIT P15 A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE OFFICE OF THE 4TH RESPONDENT. EXHIBIT P16 A TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT SEEKING FOR MORE TIME TO PREFER A REPLY.
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EXHIBIT P17 A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE OFFICE OF THE 4TH RESPONDENT. EXHIBIT P18 TRUE COPY OF THE PRESS REPORT DATED 28.11.2018 IN THE NEW INDIAN EXPRESS.
EXHIBIT P19 TRUE COPY OF THE PRESS REPORT DATED 28.11.2018 IN THE MALAYALA MANORAMA (ALONG WITH TRANSLATION. EXHIBIT P20 TRUE COPY OF THE PRESS REPORT DATED 29.11.2018 IN THE MALAYALA MANORAMA (ALONG WITH TRANSLATION).
EXHIBIT P21 A TRUE COPY OF THE PRESS RELEASE ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P22 A TRUE COPY OF THE INTERIM ORDER DATED 18.12.2018 IN WPC NO.41088/2018 ISSUED BY THIS HON'BLE COURT.
EXHIBIT P23 A TRUE COPY OF THE REPLY DATED 21.12.2018, PREFERRED BY THE PETITIONERS.
EXHIBIT P24 A TRUE COPY OF THE REQUEST DATED 24.12.2018, ISSUED ON BEHALF OF THE PETITIONERS, ADDRESSED TO THE 4TH RESPONDENT.
EXHIBIT P25 A TRUE COPY OF THE REQUEST DATED 27.12.2018, PREFERRED ON BEHALF OF THE PETITIONERS BEFORE THE 4TH
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RESPONDENT.
EXHIBIT P26 A TRUE COPY OF THE ADDITIONAL REPLY FILED BY THE PETITIONERS, DATED 29.12.2018. EXHIBIT P27 A TRUE COPY OF THE ORDER DATED 1.1.2019 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P28 A TRUE COPY OF THE MAHAZAR DATED 22.11.2018.
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APPENDIX OF WP(C) 720/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10/12/2018 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE REQUEST DATED 26/12/2018 SUBMITTED BEFORE THE 1ST RESPONDENT ASKING FOR THE COPIES OF VIDEO FOOTAGES OF EXAMINATION OF THE PETITIONERS.
EXHIBIT P3 A TRUE COPY OF THE REPLY DATED 26/12/2018 SUBMITTED BEFORE THE 1ST RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE REQUEST DATED 28/12/2018 SUBMITTED BEFORE THE 1ST RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE ORDER-INORIGINAL NO.COC-CUSTOMS-000-C0M41/18-19 DATED 31/12/2018,ISSUED ON 01/01/2019 BY THE 1ST RESPONDENT.
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APPENDIX OF WP(C) 41088/2018
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE MANAGING DIRECTOR OF THE PETITIONER COMPANY IN FAVOUR OF THE SENIOR MANAGER
EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO. 110/2003- CUS DATED 22.12.2003
EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO. 30/2004- CUS DATED 16.4.2004
EXHIBIT P5 TRUE COPY OF THE IMPORT MANIFEST (VESSELS) REGULATIONS, 1971
EXHIBIT P6 TRUE COPY OF THE EXPORT MANIFEST (VESSELS) REGULATIONS, 1976
EXHIBIT P7 TRUE COPY OF THE NOTIFICATION NO. 38/2018-CUS (N.T) DATED 11.5.2018 (SEA CARGO MANIFEST AND TRANSHIPMENT REGULATIONS, 2018), WITHOUT ANNEXURE
EXHIBIT P8 TRUE COPY OF THE ORDER BEARING F. NO. S25/67/2018-1&B. CUS DATED 26.11.2018 ISSUED BY THE 4TH RESPONDENT
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EXHIBIT P9 A TRUE COPY OF THE WIRT PETITION NO. 38764 OF 2018, FILED BY THE PETITIONER (WITHOUT ITS EXHIBITS) EXHIBIT P10 A TRUE COPY OF THE COUNTER AFFIDAVIT IN WPC NO. 38764/2018 FILED BY THE 4TH RESPONDENT HEREIN (WITHOUT ITS EXHIBITS) EXHIBIT P11 A TRUE COPY OF THE JUDGMENT DATED 5.12.2018 IN WPC NO 38764/2018 OF THIS HONOURABLE COURT EXHIBIT P12 A TRUE COPY OF THE EMAIL DATED S12.12.2018 ISSUED TO THE 4TH RESPONDENT ALONG WITH THE TRAILING MAIL EXHIBIT P13 A TRUE COPY OF THE NOTICE BEARING F. NO. SIIB/MISC/44/2018-CUS DATED 10.12.2018 ISSUED BY THE 4TH RESPONDENT EXHIBIT P14 A TRUE COPY OF THE REQUEST DATED 13.12.2018 SEEKING ISSUANCE OF CLEAR AND LEGIBLE COPIES OF THE RELIEF UPON DOCUMENTS EXHIBIT P15 A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE OFFICE OF THE 4TH RESPONDENT TO EXT P14 EXHIBIT P16 A TRUE COPY OF THE REPRESENTATION PEREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT SEEKING FOR MORE TIME TO PREFER A
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| REPLY | |
|---|---|
| EXHIBIT P17 | A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE OFFICE OF THE 4TH RESPONDENT TO EXT P16 |
| EXHIBIT P18 | TRUE COPY OF THE PRESS REPORT DATED 28.11.2018 IN THE NEW INDIAN EXPRESS |
| EXHIBIT P19 | TRUE COPY OF THE PRESS REPORT DATED 28.11.2018 IN THE MALAYALA MANORAMA (ALONG WITH TRANSLATION) |
| EXHIBIT P20 | TRUE COPY OF THE PRESS REPORT DATED 29.11.2018 IN THE MALAYALA MANORAMA (ALONG WITH TRANSLATION) |
| EXHIBIT P21 | A TRUE COPY OF THE PRESS RELEASE ISSUED BY THE 5TH RESPONDENT |
Das/css/
2 issues framed by the court
Whether the statutory alternative remedy under Section 129A of the Customs Act is efficacious against the petitioners.
Whether the writ petitions challenging the Customs order are maintainable in the absence of an alternative remedy.
Colour shows how this judgement treated each authority
Kothari filaments and Another v. Commissioner of Customs (Port), Kolkata and OthersReferred¶25
(2009) 2 SCC 192 · Who else cites this
Oryx Fisheries Private Limited v. Union of IndiaReferred¶99
2011 (266) ELT 422
Mars Shipping Services v. Commissioner of Customs (Seaport-Import)m ChennaiReferred¶99
2015 (322) ELT 865
Siemens Ltd. v. State of MaharashtraReferred¶99
2007 (207) ELT 168
Bhola Singh v. Collector of Customs (Preventive)Referred¶99
1993 (66) ELT 105
Akash International v. Commissioner of Customs, KolkataReferred¶99
2006 (197) ELT 200
Kem Chand v. Union of IndiaReferred¶143
AIR 1958 SC 300 · Who else cites this
1 provisions across 1 enactments
M/S MBK Logistix Private Limited
Anita Prabhaker
Santhosh Kumar
Joakim Yesudasan
Antony Sijo
Union of India
Dama Seshadri Naidu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
