M/S TASTY NUT INDUSTRIES, vs. COMMISSIONER OF CUSTOMS,
What did the High Court hold?
The High Court held that the writ petition is not maintainable. The Court reasoned that the petitioner had previously approached the High Court, and after a review petition was allowed, they were permitted to exercise their statutory remedy. The petitioner availed this remedy by filing an appeal, which resulted in the impugned order (Ext.P16). The Court emphasized that the statute provides a further appeal under Section 129 AI of the Customs Act, 1962, to the Customs, Excise and Service Tax Appellate Tribunal. Citing the Supreme Court's decision in Radha Krishnan Industries, the Court stated that when a statute creates a right and prescribes a remedy, that statutory remedy must be exhausted before invoking the discretionary writ jurisdiction under Article 226. Therefore, it was considered too late for the petitioner to challenge the legality of the orders in a writ petition. The Court dismissed the writ petition without prejudice to the petitioner's right to pursue statutory remedies.
What were the facts?
The petitioner, M/s Tasty Nut Industries, is a manufacturer and exporter of cashew products. They exported 400 cartons of organic cashew kernels, which were rejected and returned to Cochin Port for re-export after curing defects. During inspection, 200 cartons were found unfit for human consumption. Consequently, the goods were confiscated and destroyed, and a penalty of Rs. 50,000/- was imposed on the petitioner via an order (Ext.P9). The petitioner appealed this order, but the appeal was dismissed by the 1st respondent (Commissioner of Customs) through an order (Ext.P16). The petitioner then filed a writ petition challenging Ext.P16, arguing it was erroneous. The petitioner had previously filed a writ petition (WP(C) No. 30127/2022) which was withdrawn, but a review petition was allowed, permitting them to pursue statutory remedies.
What were the issues?
1. Whether the writ petition is maintainable under Article 226 of the Constitution of India, notwithstanding the existence of statutory remedies, given that Exts.P9 and P16 are alleged to be rendered without considering rudimentary provisions of law. Assessee's Contention: The petitioner argues that the writ petition is maintainable, relying on Supreme Court decisions in Magadh Sugar & Energy Ltd. vs. State of Bihar, Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority, and Radha Krishnan Industries vs. State of Himachal Pradesh, as well as a Kerala High Court decision in Sankar Shashtyabdapoorthi Memorial Hospital vs. Union of India. They contend that the impugned orders are ex-facie erroneous and fall within the exceptions to the rule of alternative remedy as laid down in Radha Krishnan Industries. Revenue's Contention: The respondents argue that the petitioner cannot invoke the writ jurisdiction under Article 226 as they have already availed and exhausted their statutory remedy of appeal, resulting in Ext.P16. They also point out that Ext.P16 clearly indicates a further right of appeal under Section 129 AI of the Customs Act, 1962. They rely on the principle laid down in Radha Krishnan Industries that when a statute prescribes a remedy, that remedy must be pursued.
Which sections of the Income-tax Act were involved?
Section 128A, Section 129AI
AI-generated summary — verify with the full judgment below
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945 PETITIONER/S: M/S TASTY NUT INDUSTRIES, KP XI/294, K.P. ROAD, KILIKOLLOOR, KOLLAM - 691004, REPRESENTED BY MANAGING PARTNER NAUFAL SALAM BY ADVS. ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN NIKITHA SUSAN PAULSON GAUTHAM KRISHNA E.J. AVINASH KURUNGOT SHALLET K. SAM RESPONDENT/S:
COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN - 682009
THE AUTHORISED OFFICER (COCHIN PORT), FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA, SOUTHERN REGION, MINISTRY OF HEALTH AND FAMILY WELFARE, FIRST FLOOR MARINE BUILDING, NORTH END P.O., WILLINGDON ISLAND, COCHIN - 682003 BY ADVS. I.SHEELA DEVI SMT.CHITHRA P.GEORGE, SC, FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT The writ petition is filed challenging Ext.P16 order passed by the 1st respondent under Section 128 A of the Customs Act, 1962. 2. The petitioner's case is that they are a leading manufacturer and exporter of cashew based products. They had exported 400 cartons of organic cashew kernels to an overseas agency. But the consignment was rejected and returned to the Cochin Port, with an intention to re- export the goods after curing the defects. However, during the course of inspection, 200 cartons were found unfit for human consumption without factoring that the goods were due to be re-processed and re-exported. The goods were confiscated and destroyed and a penalty of Rs.50,000/- was imposed on the petitioner by Ext.P9 order. The petitioner preferred an appeal against Ext.P9 order before the Appellate Authority, but the same was also dismissed by the impugned Ext.P16 order. Ext.P16 is
ex-facie erroneous and wrong. Hence, the writ petition. 3. Heard; Sri.Aswin Gopakumar, the learned Counsel appearing for the petitioner, Smt.Sheeladevi, the learned Counsel appearing for the 1st respondent and Smt.Chithra P. George, the learned Counsel appearing for the 2nd respondent. 4. Sri. Aswin Gopakumar, placed heavy reliance on the decisions of the Honourable Supreme Court in Magadh Sugar & Energy Ltd. vs. State of Bihar and Ors. [(2021) 6 SCR 1094], Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority and Ors. [AIR 2023 SC 781], Radha Krishnan Industries vs. State of Himachal Pradesh and Ors. [AIR 2021 SC 2114] and a decision of this Court in Sankar Shashtyabdapoorthi Memorial Hospital vs. Union of India [2017 (345) E.L.T. 334 (Ker.)] to drive home the contention that, notwithstanding Ext.P16 order being appealable, the same does not debar the petitioner
from invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, particularly because Exts.P9 and P16 are rendered without considering the rudimentary provisions of law. According to him, the writ petition squarely falls within the pigeon holes of the exceptions and principles laid down by the Honourable Supreme Court in paragraph 27 of Radha Krishnan Industries (supra). Hence, the writ petition is maintainable. 5. Smt.Sheeladevi, on the other contrary, argued that the petitioner had earlier approached this Court by filing WP(C) No.30127/2022, which was dismissed as withdrawn. Thereafter, the petitioner filed a review petition, which was allowed by this Court by Ext.P15 order, permitting the petitioner to exercise its statutory remedy. After Ext.P15 order, the petitioner preferred the appeal before the 1st respondent. Now, the petitioner cannot fall back and invoke the plenary powers of this
Court under Article 226 of the Constitution of India. Furthermore, Ext.P16 order clearly provides that the petitioner has a further right of appeal under Section 129 AI of the Customs Act, 1962. Hence, this Court may not entertain the writ petition. 6. In Radha Krishnan Industries (supra), the Honourable Supreme Court has in clause (v) of paragraph 27 in unequivocal terms declared that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. 7. In the instant case, this Court specifically permitted the petitioner to invoke its statutory remedy as provided under the Act, which it availed and the petitioner preferred the appeal, and suffered Ext.P16 order.
The statute provides a further appeal before the Customs, Excise and Service Tax Appellate Tribunal under Section 129 AI of the Act. 9. It is too late in the day for the petitioner to now aspire and turn around and challenge the legality of Exts.P9 and 16 orders in a writ petition. In the above conspectus, I am not inclined to entertain this writ petition. Resultantly, without prejudice to the right of the petitioner to work out his statutory remedies, in accordance with law, the writ petition is dismissed. Sd/- C.S.DIAS JUDGE rkc/24.05.23
APPENDIX OF WP(C) 14690/2023 PETITIONER EXHIBITS Exhibit P1 TRUE
COPY
THE
LICENSE
NO. 10016041000837 ISSUED BY FSSAI Exhibit P2 TRUE COPY OF THE CERTIFICATE OF RECOGNITION ISSUED BY THE DGFT IN FAVOUR OF THE PETITIONER Exhibit P3 TRUE COPY OF THE BILL OF ENTRY NO. 8524578 FILED BY PETITIONER ON ARRIVAL OF THE GOODS IN COCHIN PORT DATED 03.05.2022 Exhibit P4 PETITIONER TO THE ASSESSING OFFICER, FACELESS
ASSESSMENT
GROUP-1
DATED 22.06.2022 Exhibit P5 TRUE COPY OF THE CERTIFICATE NO. RNCC202200000470 ISSUED BY THE AUTHORISED OFFICER, FSSAI DATED 13.07.2022 Exhibit P6 TRUE COPY OF THE REPLY TO QUERY RAISED BY THE ASSESSING OFFICER, FACELESS ASSESSMENT GROUP FOR THE DEPUTY COMMISSIONER OF CUSTOMS (IMPORTS) DATED 18.07.2022 Exhibit P7 PETITIONER ADDRESSED TO THE ADDITIONAL COMMISSIONER
CUSTOMS
REQUESTING AMENDMENT OF CUSTOMS NOTIFICATION IN BILL OF ENTRY 8524578 DATED 30.07.2022 Exhibit P8 TRUE COPY OF THE LETTER ADDRESSED BY THE PETITIONER TO THE COMMISSIONER OF CUSTOMS REPEATING REQUEST OF AMENDMENT OF CUSTOMS NOTIFICATION IN BILL OF ENTRY 8524578 DATED 12.08.2022 Exhibit P9 TRUE COPY OF THE ORDER-IN-ORIGINAL NO. 133/2022 PASSED BY THE ADDITIONAL
COMMISSIONER OF CUSTOMS DATED 07.09.2022 Exhibit P10 PETITIONER TO THE COMMISSIONER OF CUSTOMS REQUESTING THE RELEASE OF GOODS DATED 16.09.2022 Exhibit P11 TRUE COPY OF THE REPORT OF INTERFIELD LABORATORY TEST ANALYSIS REPORT DATED 14.06.2022 Exhibit P12 TRUE COPY OF THE REPORT OF MATS LABORATORY TEST ANALYSIS REPORT DATED 15.06.2022 Exhibit P13 TRUE COPY OF THE CSIR-CFTRI REFERRAL LABORATORY TEST ANALYSIS REPORT DATED 13.07.2022 Exhibit P14 TRUE COPY OF THE JUDGEMENT DATED 17.10.2017 IN W.P.(C) NO. 27723 OF 2017 Exhibit P15 TRUE COPY OF THE ORDER DATED 23.01.2023 IN REVISION PETITION NO. 102 OF 2023 Exhibit P16 TRUE COPY OF THE ORDER-IN-APPEAL NO. COC - CUSTM - 000 - APP -01/2023-24 DATED 05.04.2023 PASSED BY THE COMMISSIONER OF CUSTOMS (APPEALS) AGAINST THE APPEAL FILED BY THE PETITIONER AGAINST THE ORDER ORIGINAL NO. 133/2022 DATED 07.09.2022 Exhibit P17 TRUE COPY OF THE SALES CONTRACT NO.TN/0404#2023 DATED 04.04.2023
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