2017 (11) TMI 1122 - HC - Customs

Validity of SCN - The main ground on which the show cause notice is questioned is by contending that the respondent has come to a foregone conclusion that the petitioner is involved in smuggling, whereas the petitioner had no earlier opportunity to put forth their case, apart from the fact, the petitioner did not have opportunity to object to the Authority extending the period by six months under Section 110(2) of the Act - Held that - the averments set out in paragraph no.8 of the affidavit of undertaking filed by the adjudicating authority would be sufficient to safeguard the interest of the petitioner - the affidavit of undertaking dated 08.11.2017 filed by the adjudicating authority, is placed on record and the writ petition is disposed of with a direction to the adjudicating authority to adjudicate the show cause notice without being influenced by the findings rendered in the order-in-original dated 31.03.2017 and proceed based on the available material and the statement recorded under the provisions of the Customs Act, 1962 - petition allowed - decided in favor of petitioner.

Summary

Issues:
Challenge to show cause notice under Section 124 of the Customs Act, 1962 without prior opportunity to present case or object to extension of period under Section 110(2).

Analysis:
The petitioner challenged a show cause notice issued under Section 124 of the Customs Act, 1962, contending that the respondent prematurely concluded their involvement in smuggling without granting prior opportunity to present their case. Additionally, the petitioner objected to not having the chance to oppose the Authority extending the period by six months under Section 110(2) of the Act. The Court granted a protective interim order based on these submissions, highlighting the procedural flaws in the issuance of the notice.

The petitioner's counsel argued that the impugned show cause notice was illegal as it referenced the petitioner without prior notice in an earlier show cause notice issued to three other individuals. This previous notice led to confiscation and penalties against the mentioned individuals. The petitioner contended that the subsequent notice, implying their involvement in smuggling, was flawed as they had not been given an opportunity to defend themselves earlier. The respondent was directed to consider adjudicating the matter independently without relying solely on the findings of the previous adjudication order.

An affidavit of undertaking was filed by the Joint Commissioner of Customs, committing to adjudicate the show cause notice without being influenced by the earlier findings. The petitioner's counsel found this undertaking satisfactory to safeguard the petitioner's interests. Consequently, the Court disposed of the writ petition with a direction for the adjudicating authority to proceed based on available material and statements recorded under the Customs Act, 1962, without being swayed by the previous adjudication order.

Overall, the judgment addressed the procedural irregularities in the issuance of the show cause notice, ensuring that the petitioner's right to a fair adjudication process was upheld. The Court's direction for an independent adjudication without reliance on prior findings aimed to provide the petitioner with a fair opportunity to present their case and defend against the allegations of smuggling.