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212 EXCISE LAW TIMES [ Vol. 373

7. Learned Counsel for the petitioner further contended that the allega-
tion levelled by the respondents that the petitioner was trying to export illegally
also could not be sustained as per Section 11H of the Act as the Goat Skins are
not specified goods as described under the Schedule nor were they recovered
from any specified area (5 Kms. from border). Furthermore, the notice does not
contain the reason assigned or the reasons for action taken against the petitioner.
It was further submitted that the adjudicatory authority, who passed Annexure
5, was also the investigating authority i.e., Assistant Commissioner, Customs,
which is wholly irregular and against the settled principle of law. In view of such
facts and circumstances, it was contended by the Learned Counsel for the peti-
tioner that this Court may order the refund of the money, as claimed by the peti-
tioner.
8. In reply to the averments made by the petitioner, Learned Counsel
for the Customs has stated that the present application is not maintainable as the
petitioner has an alternative remedy against the final order before the Commis-
sioner (Appeals) CESTAT at Calcutta and the petitioner having come to this
Court without exhausting any such remedy, cannot be benefited under Article
226 of the Constitution. It was further contended that the petitioner is a habitual
offender as is evident from paragraphs 4 and 4.1 of the adjudicatory order and,
therefore, he does not deserve any appropriate remedy under Article 226 of the
Constitution.
9. Learned Counsel for the Customs has further submitted that the peti-
tioner was indulging in illegal transportation of Goat Skin to Nepal, a buffer
State, which has often been supported by India. It was averred that the petitioner
was trying to send the goods to Nepal not through the prescribed route but by
means of other ways and that there was syndicate working behind the scene,
which was involved in widespread smuggling of Goat Skins. Having been
caught on the wrong foot, the petitioner is now trying to take recourse to legal
technicalities to succeed in his illegal trade. The petitioner’s action suffers from
violation of Sections 50 and 51 and also Section 7(b) and Section 7(c) of the Act.
He thus submitted that the confiscation of the goods under Section 113(b) and
113(c) of the Act is well-established in the case of the petitioner. Thus, having not
answered to the repeated show cause notices issued to him, which is evident
from paragraph 5 of the adjudicatory order, the respondents issued the im-
pugned orders and confiscation was made of the goods and he was also directed
to pay penalty.
10. Responding to the contentions advanced by the Learned Counsel
appearing on behalf of the Customs, the petitioner has categorically stated that
Section 11H of the Act relates to the provisions of illegal export and contemplates
what specified area is and also what is classified as specified goods. For ready
reference, Section 11H of the Act is quoted hereunder :
“11H. Definitions. - In this Chapter, unless the context otherwise re-
quires, —
(a) “illegal export” means the export of any goods in contravention of the
provisions of this Act or any other law for the time being in force;
(b) “intimated place” means a place intimated under sub-section (1), sub-
section (2) or sub-section (3), as the case may be, of Section 11J;
(c) “specified area” include the Indian customs water, and such inland
area, not exceeding one hundred kilometres in width from any coast
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