THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.17773 OF 2001 19.10.2010 Between: M/s.Kitty Steels Limited And another. …. Petitioners AND The Commissioner of Customs & Central Excise, Commissionerate-II, Hyderabad, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.17773 OF 2001 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) M/s.Kitty Steels Limited and its Managing Director filed the instant writ petition praying for the following relief. For the reasons stated in the accompanying affidavit, it is prayed that the Hon’ble Court may be pleased to issue an order, direction or writ particularly one in the nature of writ of “Mandamus” directing the 4th respondent to hear the Appeal filed by the petitioner in Appeal Nos.C/478 & 479/2000 filed against the orders of the 1st respondent in OR No.7/98-Adjn.Cus. dated 4-4-2000 after directing the 1st respondent to destuff the containers in which the petitioners machinery was imported and after physical verification of the imported goods and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. This Court, while admitting the writ petition, passed orders staying the proceedings in Appeal Nos.C/478 & 479 of 2000 pending before Central Customs, Excise and Gold (Control) Appellate Tribunal (Now Customs, Excise & Service Tax Appellate Tribunal), Chennai (CESTAT, for brevity). The respondents 1 to 3 (collectively referred to as ‘Revenue’) has filed the application being W.V.M.P.No.4475 of 2010 seeking to vacate the stay order. As the matter is a narrow compass, with the consent of the parties, the writ petition is being disposed of at the interlocutory stage. The first petitioner obtained import licence from the Director General on Foreign Trade for importing second hand machinery under ‘zero’ duty Export Promotion Capital Goods scheme (EPCG Scheme). They filed two bills of entry at ICD, Sanathnagar, for clearance of containers imported under EPCG. The customs officials inspected the containers and noticed discrepancies leading to suspicion that the first petitioner is not entitled to import machinery at ‘zero’ duty under EPCG Scheme. Investigation search was conducted leading to adjudication proceedings. A show cause notice, dated 13.02.1998 was issued under Section 110 (2) of the Customs Act, 1962. The petitioner submitted explanation. The first respondent by Order-in-Original No.2 of 2000, dated 04.04.2000 directed confiscation of all 19 second hand heavy duty machines (in knocked down condition) giving option to the first petitioner to redeem the goods paying a fine of Rs.1,00,00,000/- (Rupees one crore only). He also imposed penalties under Section 112A of the Customs Act. Being aggrieved, the petitioners preferred appeal before CESTAT. They are pending. Contending that there cannot be proper adjudication of appeals without destuffing the containers, they filed the instant writ petition. The Deputy Commissioner in the office of first respondent filed counter affidavit opposing the writ petition and traversing the various petition allegations. A reference to these is not necessary. This Court heard the counsel for petitioner and Senior Standing Counsel for Central Excise and Customs. As pointed out by the respondents, when the statutory remedy provided under the Act is availed, a person simultaneously cannot invoke the jurisdiction of this Court under Article 226 of Constitution of India simultaneously. The writ petition, itself, is, therefore, not maintainable. The petitioners’ counsel has not placed before this Court any provision of law under Customs Act or relevant Confiscation Rules, which oblige the customs officials to destuff the imported containers before adjudicating the matter. Indeed, no such plea was taken before the first respondent by the petitioner. Therefore, we are not inclined to grant the relief as prayed. It is brought to our notice that after the establishment of CESTAT, Bangalore Bench, the appeals now stands transferred to the said bench. As the matters are pending for about a decade, for no sustainable ground or valid reason whatsoever, we are of considered opinion that the learned Tribunal must give top priority in disposing of the appeals being Nos.C/478 &479 of 2000 filed by the first petitioner within a period of four weeks from the date of receipt of copy of this order. We make it clear that all the issues raised by the petitioner are kept open to be adjudicated by the CESTAT, Bangalore Bench. The writ petition, subject to above observations, stands dismissed. No costs. __________________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) 19.10.2010 Pln