Customs Act | Delhi High Court Refuses To Entertain Challenge To Absolute Confiscation, Cites Alternative Remedy

The Delhi High Court has refused to entertain a writ petition challenging the absolute confiscation of a 117-gram gold bar, holding that the Petitioner has an efficacious statutory remedy of filing a revision application before the Central Government under Section 129DD of the Customs Act, 1962.

The Division Bench of Justices Anil Khetarpal and Shail Jain dismissed the petition of an Indian national who was intercepted at the Delhi airport after he crossed the Green Channel.

A statement was recorded from him under Section 108 of the Customs Act on the same day. According to the statement, Petitioner admitted that the gold belonged to him, that he had not declared it despite knowing that Customs duty was payable, and that he was willing to pay the applicable duty, fine, and penalty.

The Department stated that an oral show cause notice had been given to the Petitioner, and a personal hearing was also granted in which Petitioner's authorised representative participated.

The Adjudicating Authority denied the Petitioner the benefit of free allowance but granted him an option to re-export the gold on payment of applicable Customs duty, redemption fine and penalty.

However, in an appeal filed by the Department, the Commissioner of Customs (Appeals) ordered absolute confiscation.

Petitioner thereafter approached the High Court, contending that the confiscation proceedings were vitiated because no valid show cause notice under Section 124 had been issued.

Customs opposed the petition on the ground that Petitioner had an efficacious statutory remedy under Section 129DD of the Customs Act against the appellate order.

Agreeing, the High Court noted that the impugned order was an appellate order passed by the Commissioner of Customs (Appeals) and that the Customs Act specifically provides a remedy by way of revision before the Central Government under Section 129DD.

It reiterated that although the existence of an alternative remedy does not constitute an absolute bar to the exercise of writ jurisdiction, a writ petition would ordinarily not be entertained where an efficacious statutory remedy is available.

The Court considered the Petitioner's reliance on violation of natural justice but found no reason to bypass the statutory remedy.

It noted that the Department had specifically asserted that an oral show cause notice was given, that a personal hearing was subsequently granted, and that Petitioner's authorised representative participated in the adjudication proceedings.

“Whether these proceedings constitute sufficient compliance with the statutory requirements is a matter which can be examined by the competent Revisional Authority” it said.

The Court also declined to finally determine the effect of Section 110(2) of the Customs Act.

It noted that Petitioner could raise before the Revisional Authority: the alleged non-issuance of a written show cause notice, the effect of the statement and alleged waiver, whether an oral show cause notice was actually given, compliance with the first proviso to Section 124, the effect of Section 110(2), the manner in which the statement was recorded, and the legality and propriety of the absolute confiscation.

As such, the petition was dismissed.

For Petitioner: Advocates Ashutosh, Fatima, Rohit Swarup, Dalip Singh, Avinash Kumar Singh, Pravej Hasan, Abhijeet Sagar, S.Vijaykanth

For Respondent: Sh. Atul Tripathi, SSC-CBIC Mr. Akshay Sagar and Mr. Shubham Mishra, Advs.