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2017 (7) TMI 750 - HC - CustomsValidity of SCN - It is the case of the respondents that the show cause notices issued by the first appellant against them lacks bona fide and the guilt of the respondents is prejudged and pre-determined at the stage of notice itself. Held that - the investigating authority/first appellant is confined to investigating the case and submitting a report to the adjudicating authority and the first appellant cannot adjudicate the case as contemplated under the Act. As such, the investigating authority and the adjudicating authority are two different persons - the contention of the respondents herein that the investigating authority has pre-determined and pre-judged cannot be accepted. Hence, the grounds raised by the writ petitioners/respondents are liable to be rejected. The SCN issued by the first appellant is sustained with liberty to the respondents to submit their reply to the SCN - appeal allowed - decided in favor of Revenue.
Issues Involved:
1. Validity of Show Cause Notice (SCN) issued under Sections 112 and 114 AA of the Customs Act, 1962. 2. Allegation of pre-judgment and pre-determination of guilt in the SCN. 3. Maintainability of Writ Petitions against SCNs. Issue-wise Detailed Analysis: 1. Validity of Show Cause Notice (SCN): The appellants issued SCNs to the respondents, who were customs brokers, alleging collusion with the importer in mis-declaring the description and value of goods imported. The SCNs were based on investigations and statements recorded under Section 108 of the Customs Act, 1962. The respondents challenged these SCNs on the grounds that they prejudged and pre-determined their guilt. 2. Allegation of Pre-judgment and Pre-determination of Guilt: The respondents argued that the SCNs were vitiated as they had prejudged their guilt, thus denying them a fair opportunity to defend themselves. They cited specific paragraphs from the SCNs that used terms like "concluded" and "revealed," indicating a pre-determined stance. The Writ Court, relying on the Supreme Court's decision in Oryx Fisheries Private Limited vs. Union of India, held that the SCNs were issued with a pre-judged mind and quashed them, granting liberty to issue fresh SCNs in accordance with the law. 3. Maintainability of Writ Petitions against SCNs: The appellants contended that a writ petition against a mere SCN is not maintainable, as it does not constitute an adverse order affecting the rights of the parties. They argued that the SCN merely set forth facts and invited responses, and the adjudicating authority would independently determine the case. They cited several Supreme Court decisions, including Union of India v. Kunisetty Satyanarayana and Ministry of Defence vs. Prabhash Chandra Mirdha, to support their argument that writs against SCNs are generally premature and not maintainable unless the SCN is wholly without jurisdiction or illegal. Judgment: The High Court set aside the Writ Court's order quashing the SCNs. The Court held that the investigating authority and the adjudicating authority are distinct entities, and the use of terms like "concluded" and "revealed" in the SCNs did not prejudice the case of the respondents. The Court emphasized that the SCNs were part of the investigation process and did not constitute a final determination of guilt. The respondents were granted liberty to submit their replies to the SCNs within six weeks, and the adjudicating authority was directed to consider these replies on merits and in accordance with the law. Conclusion: The Writ Appeals were allowed, and the SCNs were sustained, with directions for the respondents to submit their replies and for the adjudicating authority to consider them on merits. The Court reiterated that writs against SCNs are generally not maintainable unless issued without jurisdiction or wholly illegal.
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