1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.A.(MD)No.1091 of 2011 and M.P.(MD)No.1 of 2011 M/s.Unik Traders, 140, Old Tharagupet, Bangalore – 560 053 represented by its partner, Sri Hanif Thara. .. Appellant vs. 1.The Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin 628 004. 2.The Assistant Commissioner of Customs (Imports), Office of the Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin – 628 004. .. Respondents Writ Appeal is filed under Clause 15 of the Letters Patent against the order of this Court dated 25.08.2011 passed in W.P.(MD)No.8409 of 2007. Prayer in WP.(MD).No.8409/2007 Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the records passed in Order in Original No.204/2007-AC (Imports), dated 31.08.2007 in file No.C.No.VIII/48/424/2007-PD(Adj) on the file of the Second Respondent herin and quash the same as arbitrary, illegal and against the Principales of natural justice. For appellant : Mr.Yashod Vardhan, Senior Counsel, for M/s.B.Satish Sundar For respondents : Mr.B.Vijay Karthikeyan, Senior Central Government Standing Counsel JUDGMENT (Judgment of the Court was delivered by K.N.BASHA, J) Challenge in this Appeal is to the order of the Writ Court dated 25.8.2011 passed in W.P.(MD)No.8409 of 2007 dismissing the Writ Petition filed by the appellant challenging the order dated 31.8.2007 passed by the second respondent herein with a prayer for quashing the same. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Mr.Yashod Vardhan, learned Senior Counsel, appearing for the appellant would contend that the appellant filed earlier a Writ Petition in W.P.(MD)No.5573 of 2007 and this Court passed an order dated 6.8.2007 granting four weeks' time for the completion of the proceedings by the second respondent herein and thereafter, the appellant sought for certain documents in order to defend his case effectively and the same were not supplied to him fully, however, some documents were supplied to him stating that other documents such as import documents could be served at the time of personal hearing if the same is available, which necessitated the appellant to move before this court once again seeking for the relief of extension of time for completion of the proceedings. It is pointed out by the learned Senior Counsel that during the pendency of that petition, inspite of knowing fully well about the pendency and inspite of the same was brought to the notice of the authority viz., the second respondent herein, the second respondent, even without affording an opportunity of personal hearing, passed the impugned order dated 31.8.2007 as such, the appellant has been constrained to approach this Court by filing the present Writ Petition in W.P.(MD)No.8409 of 2007 challenging the said order but the Writ Court dismissed the said Writ Petition holding that there is no violation of the principles of natural justice. It is contended that though there is statutory appeal available by way of alternative remedy, the appellant though it fit to move before this Court as there is violation of the principles of natural justice as he was not afforded reasonable opportunity to defend his case regarding the alleged evasion of customs duty. It is pointed out by the learned Senior Counsel that the customs duty was already paid by the appellant and the appellant has not evaded customs duty. It is contended that all these factors have not been considered by the Writ Court and as such the appellant is constrained to challenge the said order in this Appeal. 3. Mr.B.Vijay Karthikeyan, learned Senior Central Government Counsel, appearing for the respondents herein, would contend that there is no violation of the principles of natural justice and on the other hand, the authority viz., the second respondent herein has afforded reasonable opportunity and perused the documents and the documents sought for by the appellant were also furnished except some of the documents such as import documents, ordered to be perused or furnished at the time of personal hearing. It is contended that the said factor was also considered by the Writ Court and the Writ Court held that the petitioner had only sought for further time. As such, the appellant cannot contend that there are violation of the principles of natural justice. 4. We have carefully considered the rival contentions put forward by either side and perused the materials available on record including the impugned order passed by the second respondent and the order of the Writ Court. 5. At the outset, it has to be stated that the fact remains that the appellant, through his Writ Petition filed earlier, got an order from this Court to the effect of directing the second respondent herein to expedite the hearing of the proceedings, particularly, within a period of four weeks. Thereafter, the appellant approached the authorities for furnishing certain vital documents but the authorities furnished only https://hcservices.ecourts.gov.in/hcservices/ 3 some of the documents and stated that other documents would be furnished at the time of personal hearing. It is pertinent to note that at that stage, the appellant moved before this Court seeking for the relief of extension of time for completion of the proceedings and during the pendency of such petition, the second respondent hurriedly proceeded with the matter inspite of knowing fully well about the pendency of the said Writ Petition seeking for the relief of extension of time, without hearing the appellant herein. Further, it is fairly stated by the learned Senior Counsel appearing for the appellant that the appellant is having alternative remedy of statutory appeal to be filed before the Commissioner of Customs (Appeal), Trichy and the appellant can also agitate all the points including facts and on law. However, the appellant is having an apprehension of taking consequential steps pursuant to the impugned order and as such, he has been compelled to file the Writ Appeal before this Court. 6. In view of such apprehension and the reasons stated earlier, we are constrained to set aside the order passed by the Writ Court dated 25.8.2011 made in W.P.(MD)No.8409 of 2007. Consequently, the appellant is given liberty to prefer the statutory appeal before the Commissioner of Customs (Appeal), Trichy as per Section 128 of the Customs Act within a period of four weeks from the date of receipt of a copy of this Court challenging the order passed by the second respondent dated 31.8.2007 and till such time, there will be an order of status quo, as on date, to be maintained. 7. With the above observation, the Writ Appeal is allowed. The connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar To 1.The Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin 628 004. 2.The Assistant Commissioner of Customs (Imports), Office of the Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin – 628 004. +1cc to Mr.M.Ramasamy, Advocate, SR.No.36355 +1cc to Mr.B.Vijay Karthikeyan, Advocate, SR.No.36357 asvm GH : 31.10.2011 : 3p/5c W.A.(MD)No.1091 of 2011 and M.P.(MD)No.1 of 2011 20.10.2011 https://hcservices.ecourts.gov.in/hcservices/