DHIRENDRA KUMAR JHA vs UNION OF INDIA & ORS.

The Court : An order in original dated September 12, 2017 is under challenge in the present writ petition. The order is appealable. Learned advocate

for the petitioner relies upon AIR 2008 Supreme Court 1640 (Government of Andhra Pradesh & Ors. vs. Smt. P. Laxmi Devi) and AIR 2013

Calcutta 194 (Narbada Devi Harlalka & Ors. vs. Kolkata Municipal Corporation & Ors.) and submits that, notwithstanding the availability of a

statutory alternative remedy, a writ petition is maintainable. He submits that, the petitioner had introduced an exporter to the CNF Agent. He had

nothing to do with the alleged misdeclaration to obtain duty draw back fraudulently.

In the same proceeding, different persons have been penalised differently. So far as the petitioner is concerned, a penalty of Rs. 1 crore has been

imposed. The requirement of the statute to make a pre-deposit for the appeal, renders the appeal provision infructuous, so far as the petitioner is

concerned, as he is not in funds to make the pre-deposit. It is also contended that, the municipal order suffers from the vice of bias as the authority has

imposed various amounts of penalty, in respect of the same transactions, against various persons. The revenue is represented.

On the basis of intelligence gathered by the Special Investigation Branch, Custom House, Kolkata that some exporters of garments were scheming to

export garments of very poor quality by way of misdeclaration/over invoicing with an intent to claim fradulent drawback arising out of it, proceedings

were initiated against a few persons. The petitioner was one of such persons against whom the proceedings were initiated. He was heard. The

petitioner was found to be involved in such transaction and a penalty imposed against the petitioner.

A writ is maintainable notwithstanding the existence of a statutory alternative remedy. However Courts are slow to intervene where there is a

statutory appeal available. Notwithstanding the availability of a statutory alternative remedy, where it is established that, the fundamental rights of the

petitioner is infringed or where the vires of the Act is under challenge or where the authority concerned has acted without jurisdiction or where the

impugned order stands vitiated by breach of the principles of natural justice, a Writ Court intervenes.

Smt. P. Laxmi Devi (supra) is a proceeding in which the provisions of the Stamp Act were under challenge. In such proceeding, it has held that, a writ

petition challenging an exorbitant demand made by the registering authority if established to be arbitrary and/or based on extraneous consideration, is

maintainable. In the present case, the authorities have found the involvement of the petitioner, in respect of a transaction of a FOB value in excess of

Rs. 2.74 crores. The involvement of various persons in the transactions have been considered to impose a penalty of Rs. 1 crore on the petitioner. The

petitioner has been found to be in direct touch with the exporter. He had avoided the inquiry proceedings and had chosen not to respond to that

summons issued under Section 108. His statements have been found to be elusive and not to correlate with the case. Therefore, the impugned order

cannot be said to have imposed the penalty, arbitrarily or without just reasons, on the petitioner.

Narbada Devi Harlalka (supra) is of the view that, notwithstanding the appeal provision under the Kolkata Municipal Corporation Act, 1980, a writ

petition is maintainable against an order determining the annual valuation of the premises, if the petitioner establishes economic hardship in preferring

the appeal. It would be wise to hold that, a person acting as a person dabbling in exports of Rs. 2.75 crores has no wherewithal to prefer an appeal.

In the facts of the present case, the allegation of bias against the adjudicating authority is without any basis. Various persons were involved in the

transaction. Based upon the involvement of the persons concerned and the gravity of the offence, penalty has been imposed. Therefore there is a

difference in the quantum of penalty imposed as against different persons. The difference is rational. It has not been substantiated to be irrational or

arbitrary.

In the facts of the present case, the petitioner does not come within the purview of any of the grounds on which a Writ Court intervenes

notwithstanding the availability of the statutory alternative remedy. W.P. No. 699 of 2017 is dismissed. No order as to costs.