Patna High Court
Bikaner Assam Road Lines India Ltd vs The Chief Commissioner Of Customs on 8 January, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10672 of 2019
======================================================
1. Bikaner Assam Road Lines India Ltd. through its Director Sushil Kumar
Daga, aged about 50 years, Male, Son of Sri Bhawar Lal Daga, at present
residing at of H B Road, Fancy Bazar, P.S. Paan Bazar, Districg-Gauhati
(Assam)
2. Surana Trading Company through its Proprietor Kamal Kumar Surana, aged
about 62 years, Male, Son of Late Jorawarmal Surana, R/o Village-Chengra
Bandha, P.S. Chengra Bandha, District-Cooch Behar (West Bengal)
... ... petitioners
Versus
1. The Chief Commissioner of Customs Central Revenue Building, Beer
Chand Patel Path, Patna
2. The Commissioner of Customs (Preventive) 5th floor, Central Revenue
Building, Beer Chand Patel Path, Patna
3. The Commissioner of Customs (RRA) Central Revenue Building, Beer
Chand Patel Path, Patna
4. The Assistant Commissioner (Preventive) Head Quarters, Patna
5. The Superintendent of Customs (Preventive) Circle, Jerath Compound, Main
Road, Hinoo Ranchi, Jharkhand
... ... Respondent/s
======================================================
Appearance :
For the petitioners : Mr.Prabhat Ranjan, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG
Mr. Anshuman Singh, Sr. SC, Custom
Mr. Shivditya Dhari Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 08-01-2025
In the instant petition, petitioners have prayed for the
following relief:
"(i) Quashing of the Adjudication Order No. 02-
Cus/ CC/DRI/Denovo / 2017 - 18 dated
08.05.2017
(Annexure 7) passed by the
Commissioner of Customs (Preventive), Patna
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in connection with Customs Case bearing C No.
VIII (10) 14-Cus/CC/DRI/ 08 whereby;
(a) 31104 kgs. of Betal Nut valued at
Rs. 31,12,000/- has been confiscated Under
Section 111 (a) and Section 111(d) of the
Customs Act, 1962; and
(b) A penalty of Rs. 2 lakhs has been
imposed Under Section 112(b) (1) of the
Customs Act, 1962;
(ii) Quashing of the consequential Letter No.
1142 dated 08.04.2019 issued by the
Superintendent (Respondent No. 5) directing the
petitioners to pay the redemption fine and
penalty in compliance of the adjudication order
dated 08.05.2017;
(iii) Restraining the respondents from giving
effect to the Adjudication Order No. 02-
Cus/CC/DRI/Denovo/2017-18 dated 08.05.2017
during the pendency of the instant Writ
Application.”
2. The brief facts of the case are that Supari goods
were alleged to have been seized on the score that the
petitioners were alleged to have involved in illegal
transportation of Supari goods. The truck was seized on
06.12.2007 by D.R.I., thereafter, proceedings have been drawn
in so far as seizure on 18.12.2007 by D.R.I Officials. Show
cause notice by D.R.I was issued on 26.05.2008, thereafter,
adjudicating order was passed by the Commissioner on
05.12.2008. The Department, feeling aggrieved by the
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adjudicating order of the Commissioner-Committee, preferred
appeal before CESTAT and a final order was passed on
16.12.2016. In the final Order No. 75331-40 of 2016 matter was
remanded to the adjudicating authority. Resultantly, adjudicating
authority has passed order on 05.12.2018. CESTAT order dated
16.12.2016 was subject matter of MA No. 25 of 2017 on behalf
of the petitioners, it was dismissed on 18.09.2016 read with
18.12.2018 order of the Coordinate Bench. Thus, the petitioners
are aggrieved by the adjudicating authority’s subsequent order
dated 05.12.2018 and presented this writ petition.
Submissions on behalf of the petitioners:-
3. Learned counsel for the petitioners submitted that
before the adjudicating authority on behalf of the Customs
Presenting Officer should have been appointed and to present
the case on behalf of the Customs Department before the
adjudicating authority. On the other hand, adjudicating authority
has taken a suo motu and it is not permissible. In this regard, he
has cited decision of the Hon’ble Supreme Court in the case of
Union of India vs. Ram Lakhan Sharma reported in 2018 7
SCC 670 (para 13, 28 and 34).
4. It is further submitted that adjudicating authority
proceeded to pass order with reference to Section 111(a) read
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It is submitted that reading of sub Section 28 of Section 2 of
Act, 1962 and it relates to Indian Customs Water. Resultantly,
Section 111(a) and 111(d) of Customs Act 1962 are not
attracted. Therefore, there is a total non application of mind on
behalf of the adjudicating authority. It is also submitted that
adjudicating authority has taken note of petitioners’ defence
reply submitted by the notices on 07.07.2008 through their
advocate. However, each of the contention has not been dealt
with by the adjudicating authority. Even though such a defence
reply is pursuant to the earlier proceedings. However, once
adjudicating authority is taking note of a certain material
information irrespective of whether it is a prospective defence
reply or an earlier defence reply. It was bounden duty of the
adjudicating authority to consider each of the defence reply
stated against the notices dated 07.07.2008 to that effect there is
a non application of mind. It is also submitted that adjudicating
authority has relied on a number of decisions at page 108 and
109 and it is behind the back of the petitioners. Before passing
such order, authority should have apprise the petitioners stating
that the matter is similar to that of judicial pronouncements. In
other words, petitioners have not been provided an opportunity
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to counter the citations quoted at page 108 and 109 of this writ
petition.
Submissions on behalf of Respondents:
5. The learned counsel for the respondents raised a
preliminary objections to the extent that writ petition is not
maintainable in view of the fact that petitioners have statutory
remedy of appeal before the appellate authority. It is further
submitted that reading of para 3 of the writ petition read with
the supporting affidavit of the petitioners, affidavit has been
restricted to first petitioner and it is not on behalf of second
petitioner. Resultantly, second petitioner’s writ petition is not
maintainable.
6. It is further submitted that the petitioners have
suppressed the disposal of MA No. 25 of 2017 by the
Coordinate Bench on 18.12.2018, while affirming the CESTAT
order dated 16.12.2016 and it is also submitted that D.R.I. has
not been arrayed as necessary and proper party. On merits no
other contentions urged.
Considerations:-
7. Heard the learned counsels for the respective
parties.
8. Facts narrated supra are not disputed by either of
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the extent that writ petition is not maintainable in view of the
fact that the petitioners have statutory remedy of appeal before
the appellate authority. It is to be noted that adjudicating
authority has not applied his mind to the facts of the case and so
also non consideration of petitioners’ contention in the defence
reply submitted by the notices (petitioners). That apart there is a
non application of mind insofar as deciding the proceeding and
pass order with reference to Section 111(a) and 111(d) of
Customs Act read with sub Section 28 of Section 2 of Customs
Act. Facts of the case would not fit into the aforementioned
provisions like Section 111(a) and 111(d) read with sub Section
28 of Section 2 of the Customs Act. Therefore, it is a clear case
of non application of mind. Even though, petitioners have
statutory remedy of appeal, however, having regard to the
aforementioned legal lacunae read with the Hon’ble Supreme
Court decision in the case of M/s Godrej Sara Lee Ltd. vs. the
Excise and Taxation Officer-cum-Asssessing Authority and
Ors. Reported in 2023 SCC OnLine SC 95 (para 4, 5, 6, 7, 8
and 9). Para 6 reads as under:
“6. At the end of the last century, this court in
paragraph 15 of its decision reported in
(1998) 8 SCC 1 (Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai) carved
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out the exceptions on the existence whereof a
writ court would be justified in entertaining a
writ petition despite the party approaching it
not having availed the alternative remedy
provided by the statute. The same read as
under :
(i) where the writ petition seeks enforcement
of any of the fundamental rights ;
(ii) where there is violation of principles of
natural justice ;
(iii) where the order or the proceedings are
wholly without jurisdiction ; or
(iv) where the vires of an Act is challenged.”
9. Petitioners need not exhaust alternative remedy. In
the light of the aforementioned principle the present writ
petition is maintainable accordingly, preliminary objection
submitted on behalf of the respondents stands rejected.
10. Learned counsel for the respondents submitted
that the petition is required to be restricted to only first
petitioner in view of the defect in not narrating the factual
aspects of the petitioner at para 3 read with the affidavit to the
extent that affidavit is not on behalf of second petitioner. It is
too technical, therefore, the same cannot be taken note of in so
far as rejection of the second petitioners’ petition in view of the
fact that common impugned order has been passed by the
Adjudicating Authority vide order dated 05.12.2018.
11. Non disclosure of MA 25 of 2017 may be true, but
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non disclosure of of MA 25 of 2017 would not materially
change the petitioners’ grievance in view of the fact that subject
matter of MA 25 of 2017 is in respect of CESTAT order dated
16.12.2016. CESTAT order dated 16.12.2016 resulted in
passing of fresh adjudicating order on 05.12.2018. It is to be
noted that CESTAT order dated 16.12.2016 merges with the
impugned order dated 05.12.2018. Therefore, CESTAT order
dated 05.12.2018 is required to be adjudicated in the present
writ petition. Hence, the aforementioned objection insofar as
non disclosure of the dismissal of MA No. 25 of 2017 is too
trivial in nature.
12. Non-arraying D.R.I as a necessary and proper
party is concerned, it is to be noted that the petitioners have not
assailed any action of the D.R.I. on the other hand, what has
been challenge is adjudicating authority order dated
05.12.2018. In view of these facts and circumstances, the
preliminary objections raised on behalf of the respondents
stands rejected.
13. Respondents could not apprise as to why the
adjudicating authority fail to consider each of the contention
taken by the petitioners in their defence reply submitted by the
notices (petitioners) dated 07.07.2008 which has been taken
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note of by the adjudicating authority. They have also not
apprised why the adjudicating authority is relying on Section
111(a) and Section 111(d) in the adjudicating order dated
05.12.2018. When reading of Sub Section 28 of Section 2 of
Customs Act and it relates to Indian Customs Water has nothing
to do with the present case on factual aspects of the matter.
Therefore, there is a total non application of mind on behalf of
the adjudicating authority while passing order on 05.12.2018.
Learned counsel for the petitioners submitted that adjudicating
authority passed order with reference to various citations at
page 108 and 109 of the writ petition without giving an
opportunity to the extent that adjudicating authority would rely
on judicial pronouncements so as to enable an opportunity to
the petitioners to counter the same. Therefore, there is a total
non application of mind in not providing opportunity before
relying on any documents like citations. Hon’ble Supreme
Court laid down certain principles as to how quasi judicial
order is to be passed in the case of Oryx Fisheries Private
Limited Versus Union of India and Others reported in (2010)
13 SCC 427. Para 40 reads as under:
“40. In Kranti Associates this Court after
considering various judgments formulated
certain principles in SCC para 47 of the
judgment which are set out below :
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(a) In India the judicial trend has always
been to record reasons, even in
administrative decisions, if such decisions
affect anyone prejudicially.
(b) A quasi-judicial authority must record
reasons in support of its conclusions.
(c) Insistence on recording of reasons is
meant to serve the wider principle of
justice that justice must not only be done it
must also appear to be done as well.
(d) Recording of reasons also operates as
a valid restraint on any possible arbitrary
exercise of judicial and quasi-judicial or
even administrative power.
(e) Reasons reassure that discretion has
been exercised by the decision-maker on
relevant grounds and by disregarding
extraneous considerations.
(f) Reasons have virtually become as
indispensable a component of a decision-
making process as observing principles of
natural justice by judicial, quasi-judicial
and even by administrative bodies.
(g) Reasons facilitate the process of
judicial review by superior courts.
(h) The ongoing judicial trend in all
countries committed to rule of law and
constitutional governance is in favour of
reasoned decisions based on relevant facts.
This is virtually the lifeblood of judicial
decision-making justifying the principle
that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions
these days can be as different as the judges
and authorities who deliver them. All these
decisions serve one common purpose
which is to demonstrate by reason that the
relevant factors have been objectively
considered. This is important for
sustaining the litigants’ faith in the justice
Patna High Court CWJC No.10672 of 2019 dt.08-01-2025
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delivery system.
(j) Insistence on reason is a requirement
for both judicial accountability and
transparency.
(k) If a judge or a quasi-judicial authority
is not candid enough about his/her
decision-making process then it is
impossible to know whether the person
deciding is faithful to the doctrine of
precedent or to principles of
incrementalism.
(l) Reasons in support of decisions must
be cogent, clear and succinct. A pretence
of reasons or ‘rubber-stamp reasons’ is not
to be equated with a valid decision-making
process.
(m) It cannot be doubted that transparency
is the sine qua non of restraint on abuse of
judicial powers. Transparency in decision-
making not only makes the judges and
decision-makers less prone to errors but
also makes them subject to broader
scrutiny. (See David Shapiro in Defence of
Judicial Candor (1987) 100 Harv. L. Rev.
731-37.)
(n) Since the requirement to record reasons
emanates from the broad doctrine of
fairness in decision-making, the said
requirement is now virtually a component
of human rights and was considered part
of Strasbourg Jurisprudence. See Ruiz
Torija v. Spain, EHRR at p. 562, para 29
and Anya v. University of Oxfords,
wherein the Court referred to Article 6 of
the European Convention of Human
Rights which requires, ‘adequate and
intelligent reasons must be given for
judicial decisions’.
(o) In all common law jurisdictions
judgments play a vital role in setting up
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precedents for the future. Therefore, for
development of law, requirement of giving
reasons for the decision is of the essence
and is virtually a part of ‘due process’.”
14. Adjudication authority failed to take note of the
aforementioned principles while passing quasi-judicial order.
Learned counsel for the petitioners submitted that Presenting
Officer is required to be appointed before the adjudicating
authority to present the case on behalf of the Customs
department against the petitioners. He has relied on decisions
cited (supra) in the case of Union of India vs. Ram Lakhan
Sharma. Reading of Section 122 read with 124 of Customs Act
1962, there is no provision for appointment of Presenting
Officer on behalf of the Customs Department before the
adjudicating authority against any aggrieved person. The
principle laid down in the aforementioned decision is in respect
of departmental inquiry against government servant/employee.
In those disciplinary regulations there is a provision for
appointment of Inquiring Officer and Presenting Officer and the
Inquiry Officer should be neutral and to adjudicate the
departmental inquiry. The same principle is not applicable in
view of the fact that there is no specific provision under Section
122 and 124 of Customs Act 1962. Therefore, the
aforementioned contention of the petitioners stands rejected.
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15. In view of these facts and circumstances, the
petitioners have made out a case so as to interfere with the
adjudicating authority’s order dated 05.12.2018 and it is set
aside and the matter is remanded to the adjudicating authority to
decide afresh within a period of six months from the date of
receipt of this order. Petitioners are hereby directed to cooperate
with the adjudicating authority in deciding the matter. All the
contentions are left open to be urged before the adjudicating
authority by either of the parties.
16. Accordingly, writ petition stands allowed.
(P. B. Bajanthri, J)
( Ashok Kumar Pandey, J)
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Durgesh/-
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