@JUDGMENTTAG-ORDER
V.V.S. Rao, J.@mdashThe Petitioner is in the business of running duty free shops ''Flemingo'' at airports and seaports. This writ petition is filed assailing the Order-in-Original (O-in-O) No. 03/2010, dated 30.09.2010, (dispatched on 07.10.2010) of the Respondent. By the said impugned O-in-O, the Respondent in exercise of powers under various provisions of the Customs Act, 1962 ordered confiscation of sale proceeds of duty free goods diverted to local markets, imposed penalty and ordered cancellation of Private Bonded Warehouse licence (the licence, for brevity). The Petitioner had obtained licence dated 10.09.2005 u/s 58(1) of the Customs Act issued by the Assistant Commissioner of Customs (Bonds), Visakhapatnam.
2. The officers of revenue intelligence of customs house gathered information with regard to misuse of licence and improper/ unauthorized removal and sale of goods in the local market in the guise of sales to crew members of foreign going vessels. On 22.01.2008, the merchant vessel MV. Hope Star was searched and in it was found non-duty paid fifty cartons of Cigarettes and fifteen cases of beer, branded as ship stores on the master''s request. They were removed by the Petitioner from the bonded warehouse. The Inspecting Officials recorded the statements of the local manager and, on further investigation, they found that the Petitioner had allegedly removed the non-duty paid goods from the bonded warehouse without following prescribed procedures and in gross violation of the conditions of licence besides manipulating the documents by forging wrong/additional entries in the duplicate and triplicate copies of the sale vouchers so as to account for more quantities than what was actually shown as sold to the crew members of the vessel as per original copies. Therefore, summons were issued u/s 108 of the Customs Act to the sales executive, location manager and seaport operational manager. The depositions of the bond officers were also obtained. From all these the Respondent, having come to an opinion that the Petitioner had removed non-duty paid bonded goods without keeping account and had resorted to re-export, issued a show cause notice being F. No. CO1/2008-RI & I, dated 21.07.2008 to the Petitioner and their location manager, operational manager and sales executive to show cause as to why customs duty on the non-duty paid bonded goods should not be demanded u/s 72(1) of the Customs Act, as to why interest should not be levied, as to why the non-duty paid bonded goods should not be confiscated and as to why penalty should not be imposed besides cancelling the licence. The Petitioner sent reply on 18.10.2008 denying various allegations. They also sought personal hearing to the adjudication by the Respondent. Another show cause notice dated 19.01.2009 was issued, this time invoking Section 28(1) of the Act. The Petitioner replied again on 08.10.2009 duly requesting for personal hearing.
3. Personal hearing was given on 19.03.2010. But the Petitioner requested for adjournment. It was posted to 12.04.2010. Subsequently, at their request, it was advanced to 07.04.2010 and senior counsel for the Petitioner appeared and argued before Sri M. Ponnusamy, IRS, the then Commissioner of Customs. On 19.05.2010, the Commissioner who heard the case on 07.04.2010 was transferred. Sri P.V.R. Reddy, IRS took charge. The Petitioner alleges that they received notice dated 09.07.2010 on 12.07.2010, informing about another round of personal hearing, on 06.08.2010. The hearing was adjourned to 16.09.2010 on request of the Petitioner. On that day, the location manager, the sales executive or the Petitioner''s counsel did not appear. The adjudicating Commissioner considered the matter and passed O-in-O impugned in the writ petition.
4. The Petitioner contends that, after receiving notice dated 09.07.2010 granting personal hearing, they had requested to change the time for personal hearing from 3.00 p.m., to 11.00 a.m., on 06.08.2010, that in response thereto by communication, dated 21.07.2010, time of hearing was changed, and that on 02.08.2010 they sent a communication to the Assistant Commissioner of Customs seeking adjournment to any date after 15.09.2010 (except 20th September) on the ground that their senior counsel was advised bed rest as he was not well. The Petitioner also contends that, without considering the same, the Commissioner Sri P.V.R. Reddy, IRS, passed the impugned order though the matter was heard by Sri Ponnusamy. This, according to the Petitioner, is illegal and violative of principles of natural justice.
5. The Deputy Commissioner of Customs in the office of the Respondent filed counter affidavit denying petition averments. It is stated that the adjudicating authority had provided adequate opportunity u/s 122A of the Customs Act, and that the Petitioner resorted to delays in the proceedings as a result of which, the Respondent had no option but to adjudicate the case as it is pending since long. It is further averred that the adjudicating authority had given opportunity to the Petitioner on two occasions, which were not utilized by him in a proper manner. Therefore, the written reply to the show cause notice as well as written arguments were considered and the impugned order was passed. There was sufficient material before the adjudicating authority to warrant cancellation of the licence u/s 58(2)(b) of the Customs Act. The writ petition is also opposed referring to Section 129A of the Customs Act which provides for an appeal to the appellate Tribunal.
6. The counsel for Petitioner submits that the impugned O-in-O is violative of principles of natural justice. He would urge that, u/s 122A of the Customs Act, the Respondent is bound to grant three adjournments during the adjudication proceedings. In this case, the same is violated. He would urge that cancellation of the licence contravenes Section 58(2)(b), in that reasonable opportunity was denied to Petitioner. His submission is that though the Commissioner Sri Ponnusamy heard the matter, the order was passed by the Commissioner Sri P.V.R. Reddy, which itself is illegal. These contentions are refuted by the Senior Standing Counsel for Central Excise and Customs.
7. The question of maintainability of the writ petition, having regard to Section 129A of the Customs Act and the question of violative of principles of natural justice, are interconnected. Therefore, both the issues need to be considered together. Articles 226 and 227 of Constitution confer power of judicial review on the High Courts. The power includes issuing writs in the nature of certiorari, habeas corpus, mandamus, prohibition and quo warranto, as well as directions and orders. These are writs, which were issued at the discretion of the King''s Courts in England to check excesses in the exercise of power by servants of the kingdom. The issue of writs; nay the exercise of judicial review power is subject to certain limitations, some imposed by the constitution or the statutes and others certain self-imposed limitations. One of these is the existence of alternative remedies. When the power conferred by the Constitution under Articles 226 and 227 of Constitution is exhaustive and wide enough, what is the justification for denying constitutional remedy?
Clive Lewis ''Judicial Remedies in Public Law'' Sweet & Maxwell 2004, at pp.410, explains the rationale for exhaustion of alternative remedies'' as follows.
A two-fold justification has been put forward. First, that where Parliament has provided for a statutory appeals procedure, it is not for the courts to usurp the functions of the appellate body. The principle applies equally to bodies not created by statute which have their own appellate system. Secondly, the public interest dictates that judicial review should be exercised speedily, and to that end it is necessary to limit the number of cases in which judicial review is used. More generally, the courts now encourage parties to resolve disputes without resorting to the expense of litigation. To these reasons can be added the additional expertise that the appellate bodies possess. In tax cases, for example, the appellate body, the General or Special Commissioners, have wide experience of the complex and detailed tax legislation. In employment cases, for example, the system of employment and Employment Appeal tribunals may be better equipped to deal with industrial issues than the High Court. In the financial services field, specialist procedures and a specialist tribunal have been established to deal with certain matters. Similarly, where there is a further appeal to the courts, this may be to a division of the High Court particularly familiar with the area in question, as in tax cases, where the appeal is heard in the Chancery Division not the Queen''s Bench Division.
(emphasis supplied) The decisions of Supreme Court of India and other High Courts are galore in this regard. The principle is well established that no writ would ordinarily lie if there is an effective and efficacious alternative remedy provided by the statute itself. This rule, however, has mainly four exceptions. These are (i) When Constitutional validity of the statute is challenged (
Further, in tax matters, ordinarily Courts have declined to exercise writ jurisdiction. In
8. In our view, the petition filed by the Appellant should not have been entertained. The Income Tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income Tax authorities, and the Appellant could not be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Tribunal.
9. In
10. We deem it necessary once more to emphasize that the Income Tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action. ... A writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority, which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the Petitioner.
(emphasis supplied)
11. The Appellant challenged before the High Court an order of the Tribunal allowing the appeal of the Revenue. The High Court simply said that the Appellant had a statutory alternative remedy and the Appellant had to avail that statutory remedy instead of filing writ petition. Accordingly, the High Court dismissed the writ petition. The Appellant instead of challenging the order of the Tribunal by availing the statutory alternative remedy, has filed this appeal by special leave challenging the order of the High Court. We are of the view that the High Court was right in dismissing the writ petition directing the Appellant to avail the statutory alternative remedy.
12. In
13. So far as the second point is concerned, the High court relies upon the ordinary rule of construction that where the legislature has passed a new statute giving a new remedy, that remedy is the only one which could be pursued. It is said that the Taxation on Income (Investigation Commission) Act, 1947, itself provides a remedy against any wrong or'' illegal order of the Investigating Commission and u/s 8(5) of the Act, the aggrieved party can apply to the appropriate Commissioner of income tax to refer to the High court any question of law arising out of such order and thereupon the provisions of S. 66 and 66-A of the Indian income tax Act shall apply with this modification that the reference shall be heard by a bench of not less than three Judges of the High court. We think that it is not necessary for us to express any final opinion in this case as to whether Section 8(5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution. For purposes of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere.
14. (emphasis supplied) In
15. The High court dismissed the writ petition on the ground that it involved determination of disputed questions of fact. It was also observed that the High court should not in exercise of its extraordinary jurisdiction grant relief to the Appellant when he had an alternative remedy. After hearing Mr. Sobhagmal Jain on behalf of the Appellant, we see no cogent ground to take a view different from that taken by the High court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the Appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High court, the Appellant has filed a suit, in which he has agitated the same question which is the subject-matter of the writ petition. In our opinion, the Appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
16. In
17. It is next contended for the Respondents that, whatever the merits of the contentions based on the construction of the contract, the proper forum to agitate them would be the authorities constituted under the Act to hear and decide disputes relating to assessment of tax, that it was open to the Appellants to satisfy those authorities that there have been no sales such as are liable to be taxed, that indeed they were bound to pursue the remedies under the Act before they could invoke the jurisdiction of the court under Article 226 and that the learned Judges of the High court were, therefore, right in declining to entertain the present petitions. It is true that if a statute sets up a tribunal and confides to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High court will not, in the exercise of its extraordinary jurisdiction under Article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the tribunal or interfere with their course before it. But it is equally well settled that, when proceedings are taken before a tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.
18. In a recent judgment, in
19. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in
20. In
21. Unfortunately, the high Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must enhaust the remedies available under the relevant statute.
(emphasis supplied) The position in English Courts is also well accepted. In R v. IRC Ex parte Preston (1985) AC 835 : (1985) 2 All E.R. 327 : (1985) STC 282, Lord Scarman summed up the position in English Administrative Law, thus:
22. My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. When Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision. In the first part of his speech my noble and learned friend, Lord Templeman, has set out in detail the ample appeal procedures available to a taxpayer aggrieved by a decision of the commissioners to exercise their powers and duties under Part XVII of the Act of 1970 to counteract a tax advantage alleged to have been obtained by him. ... But cases for judicial review can arise even where appeal procedures are provided by Parliament. The present case illustrates the circumstances in which it would be appropriate to subject a decision of the commissioners to judicial review. I accept that the court cannot in the absence of special circumstances decide by way of judicial review to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair.
23. (emphasis supplied) In US Administrative Law, the position is no different. Explicit and implicit legislative preclusions of judicial review are adhered to. But absolute preclusions of judicial review are not presumed unless the Congress specifically bars review whereas the bar of review to a limited extent is readily inferred. In such cases, review may be postponed to enable the executive agency to exercise discretion at various levels as willed by the Congress. In Erika United States v Erika, Inc. (1982) 456 US 201 : 1972 L.Ed 12 , the U.S., Supreme Court ruled that, "judicial review may be shaped or postponed, to allow the agencies to filter a myriad of fact-based claims, such as Social Security claims, that are suited to resolution by specialist agencies and special procedures". In National Association of Home Health Agencies v. Schweiker (1983) 459 US 1205 : (1983) 75 L.Ed. 438 , the Court held that the legislative policy of placing limitations is to prevent claimants, who seek judicial review of their claims for benefits, from bypassing the specific procedural requirements provided by Congress in various Acts, and the policy underlying this limitation to judicial review was avoided bringing the Courts into complex interplay between various competing concerns, the resolution of which depends on the facts.
24. The Petitioner does not seriously dispute the legal position. Relying on State of U.P., v. Mohammad Nooh AIR 1958 SC 86 ,
25. If the hearing authority and the deciding authority are different, it would destruct the concept of judicial hearing1Gollapalli Nageswara Rao. But as a matter of fact, if the deciding authority also gives an opportunity to hear the matter which is not availed by the person, or the statute enabling adjudication itself excludes natural justice or affords limited access to natural justice, there cannot be scope for complaint. The ratio of the Constitution Bench in
The principles of natural justice are not the creation of Article 14 of the Constitution. Article 14 is not the begetter of the principles of natural justice but is their constitutional guardian.
The principles of natural justice consist primarily of two main rules, namely, "nemo judex in causa sua" and "audi alteram partem" ("hear the other side"). The corollary deduced from the above two rules and particularly the audi alteram partem rule was "qui aliquid statuerit parte inaudita altera, aequum licet dixqui aliquid statuerit parte inaudita altera, aequum licet dixerit haud aequus fuerit" (he who shall decide anything without the other side having been heard, although he may have said what is right will not have done what is right" or as is now expressed "justice should not only be done but should manifestly be seen to be done"). These two rules and their corollary are neither new nor were they the discovery of English judges but were recognized in many civilizations and over many centuries.
It is well established both in England and in India that the principles of natural justice yield to and change with the exigencies of different situations and do not apply in the same manner to situations which are not alike. They are neither cast in a rigid mould nor can they be put in a legal strait jacket. They are not immutable but flexible and can be adopted, modified or excluded by statute and statutory rules as also by the constitution of the tribunal which has to decide a particular matter, and the rules by which such tribunal is governed.
If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution such as the second proviso to Article 311(2).
The principles of natural justice must be confined within their proper limits and not allowed to run wild. The concept of natural justice is a magnificent throughbred on which this nation gallops forwards towards its proclaimed and destined goal of "Justice, social, economic and political". This throughbred must not be allowed to turn into a wild and unruly horse, careering off where it lists, unsaddling its rider and bursting into fields where the sign "no pasaran" is put up.
26. Therefore, the rule that whenever natural justice is violated, the judicial review Court should ignore the statutorily provided remedy of appeal or revision and entertain the writ petition is not acceptable absolutely. In all tax cases - judicial notice may be taken that the endeavour of the tax payer is to gain as much time as possible, and postpone payment probably to maintain financial liquidity in business operations. The Court, therefore, must strictly scrutinize in proceeding under Article 226 of Constitution with respect to the availability of remedy under the Statute. Further, there cannot be any doubt that all issues in tax matters are not simple questions of fact and law. The expert consideration by specialist tribunals may be necessary at the first instance before the judicial remedy is made available as provided in the statute. All the direct and indirect tax laws provide the remedy of appeal or revision to the High Court against specialist tribunals established under the law made under Article 323B of the Constitution of India. Ignoring the legislative intention behind creating such elaborate tax dispute resolution mechanisms the High Court may not ordinarily interfere with the show cause notices which are themselves issued in compliance with the statute and/or assessment orders passed after detailed consideration.
27. In Salam Khan v. Tamil Nadu Wakf Board, Chennai AIR 2005 Mad 241, the Chief Justice Markandey Katju (as he then was), dealt with this aspect of the matter and made the following observations.
28. No doubt, alternative remedy is not an absolute bar to the filing of writ petitions, but at the same time it is well settled that writ jurisdiction is discretionary jurisdiction and when there is an alternative remedy, ordinarily a party must resort to that remedy first before approaching this Court. Entertaining writ petitions straight away without insisting that a party should first avail of the alternative remedy is an over liberal approach which has caused immense difficulties to the High Courts in the country because they have added to the huge arrears. The Courts have already become overburdened by this over liberal approach instead of following the settled legal principle that a writ petition should ordinarily be dismissed if there is an alternative remedy. The High Courts in India are already tottering and reeling under the burden of massive arrears which have flooded the dockets of the Court, and such kind of over liberal approach has only multiplied this problem manifold. If this approach is further continued a time will surly come when the High Courts will find it impossible to function. All this has happened because unfortunately some Courts have departed from well-settled legal principles.
29. (emphasis supplied) Even in cases where there is demonstrable breach of natural justice, as of right a petition for judicial review would not lie. The aggrieved can appear before a specialist agency, be it a departmental authority or a quasi-judicial tribunal - and agitate in matters like taxes, social security, distribution of benefits to poor wherein elaborate background facts need to be evaluated. The issue of natural justice can always be considered even by the appellate authority/tribunal. We may refer to two English cases viz., Banin v. Mackinlay (Inspector of Taxes) (1985) 1 All E.R. 842 : (1985) STC 144 and R v. Brentford General Commissioners Ex p. Chan (1986) STC 65.
30. Clive Lewis in Judicial Remedies, (2004 edn., p 412), after considering the issue comes to the conclusion that in the tax field issues of natural justice can be dealt with by the appeal system. The learned author gives the following reasons.
31. One issue that has arisen is the extent to which questions of procedural error or breach of natural justice are suitable for resolution by an appellate mechanism. This area straddles the border between general public law and the specialized statutory scheme, since the issue of what procedure is appropriate depends on what is fair in the circumstances of a particular case. Breaches of the procedural rules will normally be dealt with on appeal, where the statutory scheme itself sets out the relevant procedural rules. Breach of the common law principles of natural justice may be dealt with on appeal, providing that the appellate body can deal adequately with such complaints. In the tax field, for example, the courts have held that issues of natural justice may be dealt with by the appeal system. Appeals on points of law to the county court in the housing field encompass all the grounds of judicial review, including procedural irregularity. Where challenges to the fairness of the initial decision may be raised on appeal, it would not generally be appropriate to grant judicial review of the initial decision.
32. (emphasis supplied) The legal position is that interference by the Court, ignoring the appellate mechanism, depends on what is fair in the circumstances of particular case, and what is the statutory scheme itself that mandates procedural fairness including compliance with natural justice. If the statute itself curtails or excludes natural justice with or without limitations, it is a sure test to deny judicial review. For instance, the statute may empower the quasi judicial body to give a personal hearing only when asked for. If the civil consequences are not drastic, the statute may mandate only "hearing by representation in writing" which itself would be sufficient compliance with natural justice (see
33. There may be other situations where opportunity of filing objections in writing and as well as opportunity of personal hearing is to be given by the appellate authority or conditional with regard to the time, number of hearings, number of adjournments, place of hearing or locus of the person likely to be aggrieved. With this background, we may consider Section 58 of the Customs Act, which reads as under.
58. Licensing of private warehouses.-
(1) At any warehousing station, the Assistant Commissioner of Customs or Deputy Commissioner of Customs may license private warehouses wherein dutiable goods imported by or on behalf of the licensee, or any other imported goods in respect of which facilities for deposit in a public warehouse are not available, may be deposited.
(2) The Assistant Commissioner of Customs or Deputy Commissioner of Customs may cancel a licence granted under Sub-section (1) -
(a) by giving one month''s notice in writing to the licensee; or (b) if the licensee has contravened any provision of this Act or the rules or regulations or committed breach of any of the conditions of the licence:
Provided that before any licence is cancelled under Clause (b), the licensee shall be given a reasonable opportunity of being heard.
(3) Pending an enquiry whether a licence granted under Sub-section (1) should be cancelled under Clause (b) of Sub-section (2), the Assistant Commissioner of Customs or Deputy Commissioner of Customs may suspend the licence.
Sub-section (1) of Section 58 of Customs Act deals with the issue of the licence. Sub-section (2) empowers the cancellation of licence if the licensee has contravened any of the provisions of the Customs Act, Customs Rules or regulations or has committed breach of any conditions of licence, by giving one month''s notice to the licensee and by affording a "reasonable opportunity" of being heard. In this case, there is no dispute that while submitting explanation to the show cause notice, the Petitioner did ask for personal hearing. As we shall presently show "giving reasonable opportunity of being heard" does not mean that the adjudicating authority should adjourn the case from time to time month after month to suit the convenience of the Petitioner''s counsel, and wait for a long period before passing O-in-O. The power of the adjudicating authority to afford a reasonable opportunity of being heard is also, in our considered opinion, circumscribed by Section 122A of the Customs Act, which reads as under.
122A. Adjudication procedure. -
(1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires.
(2) The adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in Sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during the proceeding.
34. A plain reading of the above would show that no party is entitled to seek more than three adjournments after commencement of the adjudication. There is no dispute that adjudication commences with the issue of show cause notice and submission of explanation/objections by the licensee or Assessee as the case may be. If it is a case where the licensee asks for personal hearing, he is entitled only for three adjournments. The rule of natural justice is complied by giving three adjournments before conclusion of proceedings. If a licensee fails to avail the "reasonable opportunity", and remains ex parte, it cannot complain if the adjudicating authority concludes adjudication. If such construction is not accepted, Section 122A especially the proviso thereto would become meaningless.
35. Indisputably, in their reply dated 08.10.2009 to the show cause notice dated 19.01.2009, the Petitioner requested to grant them personal hearing. After receiving the show cause notice dated 19.01.2009, the Petitioner sent six interim replies and requested for copies of statements of crew members/passengers. They were asked to appear in the office on 10.09.2009 in response to which the Petitioner''s operations manager Sri Ajay Thoria visited Custom House on 15.09.2009 and 16.09.2009 and gathered information. The Petitioner then, through their counsel, sent a detailed reply dated 08.10.2009. They also sought personal hearing. There is no dispute that in response thereto the Respondent gave personal hearing on 19.03.2010 when the Petitioner''s sales executive Sri G.V.S. Kondala Rao appeared. At the request of other noticees, the hearing was postponed to 12.04.2010 which was preponed to 07.04.2010. On that day Sri Habibulla Basha, Senior Advocate and Sri Mani Shankar, counsel for Petitioner argued the matter and submitted written arguments. What happened thereafter? It is necessary to refer to relevant paragraph in the impugned O-in-O (paragraph 41.8).
36. Due to change of adjudicating authority another opportunity has been granted on 06.08.2010 in order to follow the principles of natural justice and the same has been adjourned to 16.09.2010 as requested on behalf of M/s. Flemingo (DFS) Pvt., Ltd., and Sri Ajay Thoria, Operational manager (Seaport) of M/s. Flemingo (DFS) Pvt., Ltd. Again they requested another adjournment which was not accepted by the adjudicating authority in as much as they have been granted two hearings by the present Adjudicating Authority in addition to the hearings granted by the then Commissioner and decided to process the case as per evidence available in the file. Shri V. Prasad Rao and Sri G.V.S. Kondala Rao have neither appeared for personal hearing on 06.08.2010 nor requested for adjournment of the same and hence, it is presumed that they do not want to appear again before the adjudicating authority and therefore, whatever they have submitted during the first round of the personal hearing have been taken on record. Section 122A mandates no more than three adjournments. The adjudicating authority granted more than three adjournments and when none appeared on 16.09.2010, on behalf of the company, the incumbent Commissioner passed the impugned order. We are convinced that "reasonable opportunity" was not denied to the Petitioner. Alleged denial of natural justice is not reason enough to bypass the alternative remedy and approach this Court. As noticed supra, principles of natural justice can be precluded by the statute or can be applied in a restrictive manner. Alternative remedy - we are aware is not an absolute bar for invoking the remedy of judicial review but, ordinarily in tax matters, the High Court would not entertain writ petitions against a show cause notice or against the order which can be challenged before the appellate tribunal consisting of judicial and revenue members. It is within the discretion of the High Court whether to exercise the jurisdiction or not. In this case, we are convinced that it is not a case where we should exercise our discretion under Article 226 of Constitution ignoring Section 122A of the Customs Act.
37. In the result, for the above reasons, we see no ground to interfere. While giving liberty to the Petitioner to avail the remedy under the Customs Act, and without expressing any opinion on the merits of the case, the writ petition is dismissed without any order as to costs.
