Court underscores importance of exhausting statutory remedies under Section 128 of Customs Act, 1962; highlights petitioner’s delay and voluntary waiver of show cause notice and personal hearing.
In a significant ruling dated September 2, 2026, the Delhi High Court (Division Bench comprising Justices Anil Kshetarpal and Shail Jain) dismissed a writ petition filed by Mohd Arif challenging the confiscation of two gold bars weighing 233 grams valued at over Rs. 13 lakh, and the imposition of a penalty under the Customs Act, 1962. The petitioner had approached the court under Article 226 of the Constitution seeking quashing of the Order-in-Original (OIO) dated June 14, 2024, passed by the Joint Commissioner of Customs.
The petitioner contended that the confiscation order violated mandatory procedural requirements, including the issuance of a valid Show Cause Notice and opportunity for personal hearing, alleging coercion and non-compliance with natural justice principles. However, the court noted that the petitioner had voluntarily tendered a statement under Section 108 of the Customs Act on the very day the gold bars were seized (February 17, 2024), admitting ownership, non-declaration, and his willingness to pay applicable duties and penalties without requiring a Show Cause Notice or personal hearing.
Further, the petitioner himself submitted a written communication on April 22, 2024, expressing regret for opting for the Green Channel, requesting a lenient view, and explicitly waiving the right to a written Show Cause Notice and personal hearing, while acknowledging receipt of an oral Show Cause Notice.
The court emphasized that such contemporaneous documents negate any claim of procedural impropriety or coercion raised nearly two years later in 2026. It further observed that the impugned order was dispatched to the petitioner by Speed Post in June 2024 and, under the deeming fiction provided by Section 153(3) of the Customs Act, was deemed served unless rebutted by contrary proof.
Significantly, the bench underscored the availability of an efficacious statutory appeal under Section 128 of the Customs Act, prescribing a 60-day limitation period (extendable by 30 days). The petitioner’s failure to avail this remedy within the statutory timeframe, compounded by unexplained delay, rendered the writ petition untenable.
Citing the Supreme Court precedent in Assistant Commissioner (CT), LTU, Kakinada v. Glaxo Smith Kline Consumer Healthcare Ltd., the High Court reiterated that the existence of an alternative statutory remedy ordinarily precludes interference under writ jurisdiction to uphold the legislative scheme and limitation norms. Exceptional circumstances, such as jurisdictional errors or gross violation of natural justice, may warrant writ intervention, but the court found no such patent violation here.
The judgment clarified that the court did not examine the merits of the confiscation or penalty orders or the evidentiary value of the petitioner’s statements, which remain open for consideration before the appellate authority.
This decision reinforces the principle that procedural grievances relating to statutory adjudication orders must primarily be addressed through the prescribed appellate mechanisms. It also serves as a caution against delaying judicial intervention beyond the statutory limitation period, especially when the petitioner has actively participated in the proceedings and waived certain procedural safeguards.
Bottom Line:
Alternative remedy under the Customs Act, 1962 - High Court declined to exercise writ jurisdiction under Article 226 due to availability of statutory appellate remedy under Section 128 of the Act and substantial delay in approaching the Court.
Statutory provision(s):
Customs Act, 1962 Sections 108, 110, 111(d), 111(j), 111(l), 111(m), 112, 124, 125, 128, 153(3); Constitution of India Article 226
Mohd Arif v. Commissioner of Customs, (Delhi)(DB) : Law Finder Doc Id # 2971842
