1/7 IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 10th day of October, 2017 Before THE HON’BLE DR JUSTICE VINEET KOTHARI Writ Petition No.53439 of 2015 (T-TAR) Between IPC Packaging Company Pvt Ltd Plot No.20, Jigani Link Road Bommasandra Jigani Industrial Area Bangalore-562106 A Private Limited Company Represented by its Joint Managing Director Subhash L Chhabria.
(By Mr. Rajesh Chander Kumar & Mr. Ajayan T.V. Advocates) And 1. The Additional Commissioner of Customs Inland Container Depot Whitefield, Bangalore-560 066.
2. The Commissioner of Customs C.R. Building, Queens Road Bangalore-560001.
... Petitioner ... Respondents (By Mr. Y. Hariprasad, Advocate) **** This Writ Petition is filed under Article 226 of the Constitution of India, praying to call for the records from the Respondent No.1, and issue a writ of certiorari or any other similar writ, order or direction as this Hon’ble Court may deem fit and proper, quashing the Order-in-Original No.781/2015 passed on 29.10.2015 and issued on 30.10.2015 in C.No.VIII/48/113(51)/2015 DEC ICD, passed by Respondent No.1, at Annexure-A, as being illegal and untenable in law & etc., This writ petition coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:
O R D E R Mr. Rajesh Chanderkumar & Mr. Ajayan T.V., Advocates for Petitioner Mr. Y. Hariprasad, Advocate for Respondent 1. The petitioner assessee has filed this writ petition against the order passed by the Respondent – Additional Commissioner of Customs, Inland Container Depot, Bangalore, Annexure A on 29/10/2015 raising a demand of Rs.1,02,92,549/- of Customs Duty and confiscation of goods valued at Rs.4,79,34,475/-.
2. The only ground for assailing the said order before this Court under Article 226 of the Constitution of India is, the breach of principles of natural justice by the Respondent, a Quasi Judicial Authority.
3. The learned counsel for the petitioner has drawn the attention of the Court towards the notice issued by the Respondent No.1 - Superintendent of Customs, ICD, Bangalore, vide Annexure L, on 29/09/2015, narrating therein that the personal hearings were fixed for the said Show Cause Notice dated 10/08/2015 on 06/10/2015, 07/10/2015 and 08/10/2015 at 11:45 Hrs. on all the three consecutive dates and though the petitioner’s Factory was taken over by the Banks under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on 15/04/2015, and these notices were received only through watchman of the Bank upon whom the said notice was served and soon upon coming to know of the said Show Cause Notice, the petitioner Company filed through their counsel a reply to the said Show Cause Notice vide Annexure P dated 13/11/2015, inter alia contending that the export obligations in pursuance of the import made by the petitioner Company exempting them from Customs Duty had already been complied with by the petitioner Company and the relevant evidence on that was also produced. But before such reply could be taken on record and considered by the Authority, the said Authority had already passed the ex-parte order on 29/10/2015, without considering the defence of the petitioner assessee.
4. The learned counsel for the Respondent Department, Mr. Y. Hariprasad, however, sought to justify the said order.
5. Having heard the learned counsel for the parties, this Court is satisfied that the principles of natural justice have not been followed in the present case and Respondent Authority appears to have passed the said order in a hot haste without giving a reasonable and breathing time to the petitioner Company for taking its defence before the said Authority and verify the relevant evidence produced by them. The said order, therefore, cannot be sustained and deserves to be set aside.
6. This Court is also constrained to observe that the Quasi Judicial Revenue Authorities while assigned the job of collection of Revenue in accordance with law need not act in a rash manner and throw the principles of natural justice to winds like it has been done in the present case and this Court does not find any justification for fixing three consecutive dates for personal hearing on 06/10/2015, 07/10/2015 and 08/10/2015 and then closing the opportunity for the petitioner Company to defend its case and passing an ex- parte order. The ends of justice cannot be met merely because an order raising a demand of tax or duty is passed by the Authority concerned but such orders also have to show that not only the adequate opportunity has been given to the assessee concerned but also there has been due and reasonable application of mind on the part of the Authority concerned before raising such demand. Such Authorities who pass such kind of orders only add to the volume of litigation for the Constitutional Courts or higher Appellate Authorities rather than genuinely serving the cause of the Revenue or the Government. Such tendency of the quasi- judicial Authorities cannot be encouraged. Their powers to pass orders within the frame work of law is understood and appreciated, but exceptionally when the Courts take up such cases for scrutiny under extra-ordinary jurisdiction, if the breach of principles of natural justice is glaring, the Courts cannot shut its eyes and leave the parties to fend for themselves in the long channels of appellate litigation under the Act. The present case is a glaring example of misuse of powers by the Respondent Authority.
7. The petition is therefore allowed with costs of Rs.20,000/- to be personally borne and paid by the said Authority, Ms. Reena Shetty, Additional Commissioner of Customs, Inland Container Depot, Bangalore, to the petitioner Company.
8. The impugned order, Annexure A dated 29/10/2015 is set aside and the Respondent Authority is allowed to pass fresh orders after giving a reasonable opportunity of hearing to the petitioner assessee and after considering the relevant evidence produced by the assessee Company and pass a speaking order in the matter.
9. The petitioner assessee Company may appear before the Respondent Authority, in the first instance, on 07/11/2017 and a period of three months is allowed to the said Authority to pass appropriate orders.
Sd/- JUDGE BMV*