Dismissed

M/s. Ph Jewels v. The Union of India

Telangana HC8 Aug 2023WP/15987/2023

Case brief

AI extract

What is this about?

A writ petition challenging a customs duty order and seeking a refund was dismissed. The Court held the petition was not maintainable due to the availability of statutory appeals, a prior dismissal of a similar case between the same parties, and significant inordinate delay. The writ jurisdiction was deemed inappropriate at this stage.

What did the court decide?

The writ petition was dismissed without costs, refusing the quashing of proceedings and the refund of customs duty and interest.

M/s. Ph Jewels Vs The Union of India — Property and Title | Telangana HC (2023)

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[³³⁸⁶ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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TUESDAY, THE EIGHTH DAY OF AUGUST TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HON'BLE SRI JUSTICE P. SAM KOSHY AND

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THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

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WRIT PETITION NO :15987 OF 2023

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Between:

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tt//s. PH Jewels, 1st Floor, Regus Business Centre, Mid Town Plaza, Road No.1, Banjara Hills, Hyderabad - 500033. Presently al.5-9-273, Cl, Mayur Kushal Complex, Abids, Hyderabad - 500 001 . Sole Proprietary Firm, Rep. by its Proprielrix, Radhika Agarwal, D/o. Ashok Agarwal, Aged about 44 yearc, Rep.by GPA Sanjay Agarwal S/o.Balkishan Agarwal, On".OO ,"r1-".raTtTtoN

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AND

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The Union of lndia, Rep.by its Secretary, Department of Finance, North Block, New Delhi -^'1 10 001 .

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2- The Principal Commissioner of Customs, Hyderabad Customs

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Commissionerate, L.B Stadium Road, Basheerbagh, Hyderabad - 500 004.

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Directorate of Revenue lntelligence, Rep.by The Deputy Director, Hyderabad Zone Unit, G.No.10-2-28915711 and 2, Suryavanshi Residency, ll Cross Road, Shantinagar, Masab Tank, Hyderabad - 500 028.

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IVIMTC Limited, Rep.by The General Manager, H.No.9-'l-76 lo 7711,3rd Floor, sD Road' secunderabad - 500 003'

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...RES,.NDENTS

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Petition under Arlicle 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ of Certiorari or any other appropriate Writ, Order or Orders, Direction or Directions to quash the^proceedings of the order of the 2nd respondent in O.R.No.77l2O17-Adjn Cus, dt.1 2.02 .2O2O and to issue a consequential direction to the 2nd respondent to refund the amount of Rs.73,52,985^ collected towards Customs Duty and Rs.3,26,5471 being interest thereon and further applicable interest applicable on refund of the same to the petitioner

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lA NO: 1 OF 2023

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Petition under Section 151 CPC^praying that in the circumstances stated in the affidavit filed in support of the^petition, the High Court may be pleased to

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suspend the t,rler c :he 2nd respondent in OR No i 7 ,20' 7 -Adjn Cus, d1.12.02.2020 pr:ndinr r;isposal of the Writ Petition

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Counsel for the Petit 'rrrer: SMT. VEDULA CHITRALEKI-lA

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Counsel for Responr ent No. 1: SRI GADI PRAVEEN KUMAR

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(Dy. SoLICITOR GENETIALOF NDIA)

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Counsel for Respon< errt No. 2: SMT. BOKARA SAPNA REDDY

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Counsel for Respon< errt No. 4: SRI MANU

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The Court made the ollowing: ORDER

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THE HON'BLE SRI JUSTICE P.SAM KOSIIY

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AND

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THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

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W.P. No. 1598 7 of 2o23

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ORDER:per //or L,btc SnJuitk:e P.SAM KOSHiri)

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The instant rvrit petition under Article 226 of the Constitution of Inclia has been filed seeking quashment of the proceedings initiated by the respondent No.2 _ The principal Commissioner of Customs, Hyderabad Customs Commissionerate in O.R.No.ZZ /20lZ /2017_Adjn Cus, dated 12.02.2020 and u.ith a further clirection to respondent No.2, to refund an amount oi Rs.73,52,985/- collected towards customs duty and in addition, refund of Rs.3,26,S 4Z / _ being interest thereon, along with further interest on the said amount as demanded by the respondent No.2 vide order d,ated. 72.02 .2020 .

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Heard Smt. Vedula Chitralekha, learned counsel for the petitioner, Smt. Bokara Sapna Reddy, learned counsel for respondent No.2 and Sri Malu, learned counsel for respondent No.4.

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The petitioner herein is engaged in the business of gold and gold jewellery and is ir-rto the business of export of gold ornaments. As.per the petitioner, they are required to purchase

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golci brilli^.rrt 1l- ,t,t the respot-lcieltt No.4 oll l)ar.nr('l-Ll' ':ost^{of the} gold brrlhor-r a rcI from^{'.hc gokl} purchased^{f:-orr ]r} ''^{respc lldcllt} No,.1. rhe rcti i(.,l1er is^rerlttired to^{mzurulac ul t' 1c'l<1} lelr^{c ilcrics} ar-rrl the^s,r:nre hrs to^{bc cxPorl('rl.Tl're responclc'nt No 4\f MTC} I-rmitecl is tlreⁿ tminatcd^{:ruthorizcd agencvol- th I{es;ervc Bank} of h'rdia krr i r1;orting dlttv frcc gold frorn^{al ,l o rranci fr-rrther} authorizr d to scll to thc^locarl .jcrrcllcv^{In.tllr.lla--1tr<'rs for the} purpose o1- r:<1>ort. As per the^{prcvailtnF,:;\s[. rlt, thc local} ornamenLti rrt^Ll, ers^{rvoulcl purchasegold fr')nrrrl. rorrderr t No'4} bv deposi--ing l25ok of^{thc dr-rtr tor'r'ards sec-.t:'ir' c.L:posit r'i'ith} rcspond€ r-tt N .'t. In a<lditror-r^to l)aylnel1t^{ttfr h< n' ,lrl1 cosl of the} gold bu11ior.:, h -: amout-tt^of secr-rrity^{depositbt:ccnrt-'s refurldable} to thc pr:.rr:h^rs er of^{golcl bullron lrom \41'1T(lL rrli -ed on the} export 1r- gc C ornanlents on^{I ealizatioll ci prcc} '^{c'cls ol export} sales frc,t:-r tl e foreign buyers^{rn thc forn- of Iil::c:tr-oni<;Bank} Realizatrort C:rtificate^{rssued bv the DireclorCeL-L'ra of Foreign} Trade.

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[t s zrll^ged that the respondent^{No I' had l':vclled certain} cha-rges agitir sr the^{petitioner,allegir-rg failr- rer. I e:r1;c rting of the} gold ornan-re its manufactured from thc rlold^{:r Lrc tasecl from} respondenl I c 4. It rvas the further^{allegaticnthzL the petitioner}

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had manufactured gold jeu,elleries from the gold bullion purchased from the respondent No.4 and instead of exporting the same, as was the condition required, have in violation of the same, sold the gold jeu,elleries in the open market. The officers of the respondent No.3 said to have conducted a search in the premises of the petitioner's estabhshment to enquire about the export shipments and found that the petitioner had mislead the officers of the respondent No.3 b,l. producing fake documents showing that the exports have been made.

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A show cause notice was issued to the petititoner on 31.07.2017 for alleged diversion of 25 kgs of duty free gold purchased by the petitioner from respondent No.4 without payment of customs duty. That from the gold ornaments manufactured from the same, it ',r,as sold in the local market and at the same time, the gold ornaments were exported from the gold purchased by the petitioner from the local market, instead of buying from the respondent No.4 for the purpose of export. The petitioner said to have submitted his reply after more than fifteen (15) months i.e. on 08.11.2018, denying the allegations and questioning the sustainability of issuance of the show cause an notice. Subsequently, the petitioner had voluntarily paid

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an1()unt r;l- li: .'i 3.52,935,/ tori.ards the cltsto l:, ,r Ltr :rqir trst the allegccl rlrr.t:r sior- ol 25 l<gs of gold pLlrclrzis,(l l,-onr lvlNITC Limit<:d ilr t c said reph. it !,as statccl 11 r-h,: J t,tti.i6nr_'r. lhat in order to lrLrr p cc:e and 1o arroicl untteccssa-' l-lari ss,nt,n. al thc hands ol tlre n:sltondents, the-v had agrecd to plL, :rr tintoLrrrL of Rs.73,5.1,9r! /

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At tl-t: I'rst instance, rrhat is [o l>r: s;tt,it s tlr,1t Lhe petitionr':- lta 1 rtrtt challenged the shotr c.tu:j(r nr)li( r lltrt u,as issuecl on 3 .t)7.2O 17. At the same tintc. rl:r lctitionc,r had sllbmitto(l hi ; cxplanatiot-r to the sard sltou, caLt .;(,^-roti(.c :tfter more tlLeut rr-ound fiftc'cn (15) months i.t . :r O8. I L20 19. The eruthrrritj :,.. concerned, vide order datc(i 1'.)..1).'.. _),O20, l)assed ll-re final ,rrclt r holding that the petitioner I'acl ,r nil (r: i)a-,ment of Rs. 711,.52.^)il 5rl- tou,ards customs dut,r' or-r :Zl> k 1s tf clr rty free gold, whir:h v a s <liverted by the petitioncr in Ler.rn. ol SecLion 28 of the Cliisto n s Act. In addition, it u,as also crr e rr:d tltat the petitioncr sir li be liable to pay interest in t,trm:l oi Sr,crron 2BAA of the Clu st rrns Act and the interest stoc)c c1r: ant ilied at Rs.3,26.54'/ I Further, there u'as a-1so an ordr:;. rf confiscation of thc ,rlli gr d cliverted gold of 25 kgs u,itl.r r .rr penaltl. of Rs.5,O0.00{)1 r-rnder Sectrorr 1 l4 AA of the lustor-.rs .\ct \.ith yet

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another penalty of Rs. 1,00,0OO/ - on the power of Attorncy holder, Sri Sanjay Agarwal under Section 112 (a) of the Customs Act and a like amount of Rs. 1,00,000/- again under Section 1 14AA of the Customs Act.

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It is these orders, which are challenged with a further request for refund of the amount already deposited by the petitioner. Though the learned counsel for the petitioner cited the judgement of the Honble Supreme Court in the case of Whirlpool Corporation us. Registrar ofTrade Marks, Mumbai and Otherst and also a recent decision of the Supreme Court in the case of M/ s. Godrej Sara Lee Ltd. u. Excise and 'faxation Offtcercum-Assessing Authonty and Ors.2 on the aspect of the writ Court having the powers to entertain a writ petition in matters where there are statutory remedies of appeal available. According to the petitioner, since the entire action on the part of the respondents in issuance of the show cause notice, as also in the Iinal order passed on I2.O2 .2O2O was hrstly without jurisdiction, secondly without proper application of mind and also the same has been passed in a mechanical marlner without

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11199818 Supreme Court Cases 1

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'^{atn zoz:supRevE couRT781}

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1.tll

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properh' r')l)ri c ating^{tl-rc explanationand the jLr:;tif'c:rtit'rlt so} pror,rclcd i). ll r petilioner.^{I[ !'as the conter-rti')tl tllc ]c:il ltecl} counsCi iot tl e^{pe titioner that the entire a( t t 1l illso s;lal]d s} vitiatcd, rs 1l 3 impugnccl^{orciet has becn p:Ls;s:r be-r'ond thc} period of lilrit t on^{so pro:idecl and the rutles gore tlrr-rr1 tlltl-rcld'}

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l-eantcrl^{(.oltnsel appearirlgforrcspcnclcr't\c+ ol'i tlle} othe r hart,:1.^{( ll)osing the petitionon thc grou:lJ t hrrt tlrc rvrit} pclrtiott il; n rt llaintainable^{and moreovert-'' r-c bt'tllq an} alternartl,'(^{str tl,ltory remedy ave{lable to lh'l I)et 1i rrlr:r' tllc $'rit} petiton \'as zrsked^{to bedismissed' Thelt'rl llcdcoultsel} proclr-rcecL Irrll rrc this^{Court a \'ritpetitioll rlf s;iln 1:lr llatltre} invohrng thc 1:etitioner^{himsell, beingfilerl l>1 tl c' responcient} No.4 her-cjrt ie. M/s.^{Meta-1s and Minerais Tradir *(iorprrrail6p} (MMTC l-itrLitd)videW.PNo.11386of2O2i,w'hic'rthel)ivjsion Bench cl- th'i^; Court,^{bS its order dated 25'()'1 2()'):i bcing not} ir-rclined to^ct tr:rtain^{and the same was disrnissecl on t1-rc ground} that the pelil oner^{has an effacaciousalternatjve l irlnlld]'}

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g. Onc:c "' hen the^{Division Bench of tl': isl'{ig r ( ourr iu the} clisputellctr.e.:nthesarnepartieshastekenat.it:''r.tIlatthe impugt-t,:11 o dr:r^{beit-tg allapPealable orcler, lhtr r"'rit Petrtion}

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would not be maintainable and this Court is inclined to take the same view of the writ petition being not marntainable.

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IO. Another aspect which needs consideration is the inordinate delal that has occurred on the part of the petitioner in assailing the impugned order dated 12.02.202O. Though the impugned order is the one which was passed on 12.02.2A20, the present writ petition has been filed oniy on 21.06.2023 i.e. after more than three (3) years time. Since, we are of the considered opinion that the impugned order does not u,arrant interference at this stage invoking the writ jurisdiction, firstly on the ground that the petition has been preferred u,ith an inordrnate delay, though the learned counsel for the petitioner has tried to give explaaation for the delay caused, but the explanation so provided does not find force as there were ample opportunities available to the petitioner to have approached the competaat Court of law for redressal of the grievance that he had.

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I l. This Court is also not inclined to entertain the same for the reason that under the similar set of facts between the same parties, involving the petitioner himself, having not being entertainecl by the Division Bench of this Court on the ground

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lhat Llrc :ip1:t'r I s :rn apltcaierbie order and t]rc pr: it c',ncr's iiberlr to lssilil lrt s Ite stoocl rcset.r,cd

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L2. I,-or tlr( :rforesard reasolls, the pr-:sc'I-rt \^r- t p,''titioll desr--n'cs Lo lr, rrnd is accorclingly dismisse<1.^'Ih.lr : sl-rall llc ncr OfClcf ::S^r-r r.rl t

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,\s sr'r r,:1. miscallaneous petitions pcndirrr,. if anr. sl'rall stai rcl clcl s:cl

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SD/.P. CH. NA(iAI}HUSHAMBA r\SSISTANT REGISTRAR

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//TRUE COPY//

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l;t:CTION OFFICER

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To, 1. One CC to Snrt \ edula Chitralekha Advocate [OPU3] 2. One CC t. Sri⁽ a Ci Praveen Kumar, Deputy Solicitor Gen:r:rl of lndia [OPUC] J One CC to Snrt E okara Sapna Reddy, Advocate(Ot'UC) 4.q One CC to Srr I ia nu, Advocate(OPUC) Two CD Oopie: MBC BS 6\e

HIGHI COURT

DA]-ED: 08t08,tz}23

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ORDER

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WP.No.159BT of 2023

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DISMISSING THE WRIT' ['ETITION

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WITHOUT I]oSTS

M/s. Ph Jewels v. The Union of India

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M/s. Ph Jewels v. The Union of India

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