Rahul Jhagharia vs Union of India

The subject matter of challenge in the appeal is an order dated 1st October, 2015 by which the writ petition was summarily dismissed.

The facts and circumstances of the case, briefly stated, are as follows :

The writ petitioner an importer lodged a Bill of Entry dated 30th April, 2013 describing the goods imported as general purpose machinery oil belonging to Tariff Heading 2710 19 80 @ US $ 450 per MT.

On the aforesaid basis the writ petitioner deposited on 3rd May, 2013 a sum of Rs. 5,32,064/-. It is not in dispute that two several bills of entry were lodged on the same day, but only one of them has been disclosed.

The authorities presumably were not agreeable to accept the declaration made in the bills of entry at its face value. The writ petitioner in the circumstances wrote a letter dated 6th May, 2013 which reads as follows : -

"Reference to the consignment covered under referred 2 Bill of Entry. We agree for enhancement of Unit price from USD 500 to USD 1000 per MT.

As the cargo is incurring several demurrage and detention we pray for immediate release of our B/E. We do not desire any SCN/AO/PH."

A summon was thereafter issued to the writ petitioner under Section 108 of the Customs Act, 1962 on 7th May, 2013. No copy of the summons had been disclosed by the writ petitioner nor did the writ petitioner in fact disclose the letter dated 6th May, 2013 indicated above. In reply to the summon dated 7th May, 2013, the writ petitioner wrote a letter dated 8th May, 2013 admitting the fact that it had misdescribed the goods. While they confessed the misdescription of the goods, they sought to avoid the same by alleging that this was due to a mistake on the part of the foreign supplier. They added in their letter dated 8th May, 2013 as follows :

"We have already given in writing that we are ready for enhancement of value and further any requirement of SCN/AO/PH may kindly be dispensed with. We accept the fact that the goods have been misdeclared and agree for any decision taken as per law."

They also admitted that they had committed an offence and prayed for condonation thereof. They also prayed for early release of the goods considering that they are liable to recurring demurrage and detention charges.

There is as such, no manner of doubt that the writ petitioner himself admitted the offence. He agreed to enhancement of value. He admitted the fact that he has misdeclared the goods. He also agreed to accept any decision, which the authorities may take in accordance with law.

It appears from the office note dated 6th June, 2013 that the Customs authorities held that the writ petitioner had misdescribed the goods and also had them undervalued. The authorities, therefore, adjudicated the value of the goods at US $ 1000 per MT instead of US $ 450 MT. The Tariff heading was also changed from 2710 19 80 to 3403 19 90. Based on the aforesaid order of adjudication, the Commissioner of Customs confiscated the goods with an option to the writ petitioner to redeem the same subject to payment of fine of Rs. 17 lakhs. Penalty of Rs. 8,50,000/- was also imposed under Section 112 of the Customs Act, 1962. The office note dated 14th June, 2013 appearing at Page 64 of the Stay Petition goes to show that the goods imported by the writ petitioner were SAE - 40 Grade Engine Oil and not General Purpose Machinery Oil [Medium Grade] as declared in the Bills of Entry.

It is not in dispute that the authorities thereafter issued a challan dated 27th June, 2013, valid upto 28th June, 2013 against the bill of entry dated 30th April, 2013 for payment of an aggregate sum of Rs. 31,25,670/- which included a sum of Rs. 5,63,852/- on account of duty, Rs. 17 lakhs on account of fine, Rs. 8,50,000/- on account of penalty and a sum of Rs. 10,427/- on account of interest. The writ petitioner duly paid the aforesaid sum on 27th June, 2013 itself though the challan was valid till 28th June, 2013. This payment is, however, relatable to only one of the two bill of entries lodged on 30th April, 2013. We already have indicated that the other bill of entry has not been disclosed.

In the aforesaid background of admitted facts, the case made out by the writ petitioner is as follows :-

(a) the writ petitioner gave up his right to raise objection at the instance of Customs officials;

(b) that the petitioner was not liable to make payment;

(c) that he is entitled to refund, and

(d) that he intends to prefer an appeal

but he could not succeed in doing so because the orders in original apropos to the aforesaid two bills of entry both dated 30th April, 2013 were not furnished to him.

Mr. Saraf, learned advocate, appearing for the Customs has produced the letter dated 6th May, 2013 and 8th May, 2013 both written by the writ petitioner to the Customs officials, correctness whereof was not disputed by Mr. Chowdhury. Therefore, the case that the writ petitioner was forced to give up his right made out by the writ petitioner is altogether false. The right to prefer an appeal is doubtful because the orders were passed by the authorities pursuant to the request made by the writ petitioner itself. We should not, however, be deemed to have expressed any final opinion in that regard because the appeal, if any, is to be filed before the Tribunal and not before us. Whether the writ petitioner is entitled to refund is also a matter, which is not the subject matter of this writ petition. Therefore, we are not called upon to express any opinion with regard thereto. The petitioner prayed for a Writ in the nature of Mandamus, which reads as follows : -

"(a) A Writ of and/or in the nature of Mandamus directing and commanding the respondents and each of them, their subordinates and officers to forthwith communicate the order in original in respect of the Bill of Entry No. 2003740 and 2003723 dated 30th April, 2013 each."

A Writ in the nature of Mandamus cannot be issued in the absence of a right in favour of the writ petitioner created by Statute, which correspondingly creates obligation on the part of the Statutory Authority or the State within the meaning of Article 12 of the Constitution of India. Reference in this regard may be made to the judgment in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra And Others reported in (2013) 4 SCC 465 which reads as follows : -

"A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the writ petitioner that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement on the basis of which writ jurisdiction is resorted to."

Mr. Chowdhury contended that such right is to be found in Section 153 which provides as follows : -

"153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served, -

(a) by tendering the order, decision, summons or notice or sending it by registered post or by such courier as may be approved by the Commissioner of Customs;

(b) if the order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house."

No other statutory right was relied upon by the writ petitioner.

Section 153, according to us, lays down the procedure as regards service of any order or decision, we do not think, it creates any substantive right in favour of the writ petitioner. Even assuming that Section 153 lays down a duty upon the authorities to serve a copy of the order, we think the writ petitioner waived its right in that regard by his letters dated 6th May, 2013 and 8th May, 2013 discussed above. After the office notes dated 6th and 14th June, 2013, the challan dated 27th June, 2013 was issued by the Customs Department indicating the amount of duty adjudicated, fine and penalty levied upon him. The writ petitioner thereafter paid the amount on 27th June, 2013 itself and had the goods released. The fact that he promptly made the payment without any let or demur is ample evidence of the fact that the orders of adjudication including the order directing payment of fine, penalty etc. were accepted by him. He is now estopped from contending otherwise. It may also be contended that the writ petitioner waived its right if any under Section 153 of the Customs Act. Reference may in this regard be made to the judgment in the case of Krishna Bahadur v. M/s. Purna Theatre and Others, reported in AIR 2004 SC 4282, wherein the following views were expressed :

"8. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; wavier is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.

A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct."

Mr. Chowdhury submitted that such order, if any, as far as his client is concerned, is evidenced by two Office Notes dated 6th June, 2013 and 14th June, 2013 appearing from Pages 63 and 64 of the stay petition.

Since the respondents did not use any affidavit either before the Trial Court or before this Court nor did Mr. Saraf dispute the correctness of the contents of the Office Notes appearing at Pages 63 and 64 the contents of the Office Notes dated 6th June, 2013 and 14th June, 2013 appearing at Pages 63 and 64 of the stay petition are deemed to have been duly proved by the writ petitioner.

For the aforesaid reasons, we find no substance in the submission that there has been violation of any statutory right of the writ petitioner which calls for issuance of any Writ in the nature of Mandamus.

In that view of the matter, the appeal is dismissed with costs assessed at 200 Gms.

It is however clarified that the views expressed herein are for the purpose of disposal of this appeal and they shall not preclude the statutory authorities from arriving at a different conclusion if occasion arises.