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2021 (8) TMI 178 - HC - CustomsJurisdiction to Issue Show Cause Notice (SCN) - Proper officer - Valuation of imported goods - flavours and fragrances - rejection of transaction value - re-determination of assessable value - principles of res-judicata - Objection to Jurisdiction raised at a belated stage - Alternate Remedy - Suppression of Material Fact - Applicability of judgment in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT . Objection to Jurisdiction raised at a belated stage - HELD THAT - It is to be noticed that the point of jurisdiction which goes to the root of the matter could be raised at any stage of the proceedings, which is a settled position of law. In fact, absence of jurisdiction to issue a show-cause notice if raised even after an assessment order is passed, such objection regarding jurisdiction of the authority if found in the affirmative would vitiate the whole proceedings including the assessment orders or orders passed on an appeal and other orders of the superior authorities. Accordingly, the contention regarding jurisdiction as raised by the second respondent is liable to be rejected. Alternate Remedy - HELD THAT - The Apex Court in the case of M/s.Canon India Private Limited has unequivocally dealt with the point of jurisdiction of the Officers of DRI in the context of proper officer and in light of the unequivocal findings made there is no necessity for any re-adjudication of such an issue and accordingly, the question of relegating the party to avail of the statutory remedy would not arise. Res Judicata - HELD THAT - The dispute on hand in the present case however is one that relates to valuation and not as regards to the tariff applicable and that comes out clearly from the contents of the show-cause notice dated 07.01.2008 and this position regarding distinct nature of dispute of the show-cause notice relating to the judgment of the Supreme Court in the case of GIAVUDAN INDIAN PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, BANGALORE 2009 (12) TMI 786 - CESTAT BANGALORE as well as the present dispute is clear even on a bare perusal of the material on record and does not involve any complicated factual enquiry necessitating relegation of the parties to the remedy of appeal. Accordingly, the question of res judicata would not be a bar to the adjudication of the present proceedings nor does it necessitate the relegating authority to avail of the statutory remedy of appeal. Suppression of Material Fact - HELD THAT - The question of appropriateness of valuation is still to be adjudicated and the matter is now reopened by setting aside the impugned order reserving liberty to issue fresh notice. Accordingly, any finding regarding misleading declaration made would be impermissible as it would amount to prejudging the issue on hand. The other grounds made out by the respondent No.2 as regards the petitioner not revealing the other litigations pending with the Department is liable to be rejected, in light of the discussion made while dealing with the issue of res judicata. Applicability of judgment in M/s.Canon India Private Limited - HELD THAT - In the present case, applying the law laid down in the case of M /s.Canon India Private Limited clearly, the proceedings that have been initiated by issuance of a show cause notice dated 07.01.2008 by the Additional Director General, DRI is also liable to be set aside in light of the law laid down by the Apex Court. While judgment of High Court of Madras in the case of COMMISSIONER OF CUSTOMS (AIR) VERSUS M/S. PREMIER TOURS TRAVELS (CHENNAI) PVT LTD. CUSTOMS EXCISE SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH, CHENNAI 2021 (2) TMI 659 - MADRAS HIGH COURT where identical contentions were raised and the consideration of such aspect has been relegated to be decided in the appeal, however this Court does not find any reason to take the same view, in light of the clear findings in the case of M/s.Canon India Private Limited which does not leave any scope for further adjudication and the law laid down by the Apex Court ought to enure to the benefit of the petitioners. The Order-in-original in both the writ petitions are set aside while holding specifically that the show cause notice at Annexure-B dated 07.01.2008 is one that is not issued by 'the proper officer' - petition allowed.
Issues Involved:
1. Objection to Jurisdiction raised at a belated stage. 2. Availability of Alternate Remedy. 3. Applicability of Res Judicata. 4. Alleged Suppression of Material Facts. 5. Applicability of the Judgment in M/s. Canon India Private Limited. Issue-wise Analysis: 1) Objection to Jurisdiction raised at a belated stage: (i) The contention raised by the second respondent was that the petitioners had not raised the objection to jurisdiction at the first stage of adjudication. (ii) It was noted that the proceedings were remanded for fresh consideration as per the order dated 20.01.2016, and in such de novo enquiry, the contention regarding the absence of jurisdiction was raised. This was confirmed upon perusal of the order dated 27.02.2017 at Annexure-'G' in W.P.No.4628/2018, specifically at Para 40.1.1. It was established that the jurisdictional issue, which goes to the root of the matter, can be raised at any stage of the proceedings. Hence, the contention regarding jurisdiction raised by the second respondent was rejected. 2) Alternate Remedy: (i) The respondents contended that a statutory appeal as per Section 129A of the Customs Act was available against the impugned order, and all questions, including jurisdiction, could be raised through this remedy. (ii) The learned Additional Solicitor General referenced a judgment of the Madras High Court, which relegated parties to avail of statutory remedies. (iii) However, it was noted that entertaining a writ petition even when a statutory right of appeal is available is a matter of discretion. The Apex Court in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others established that writs could be entertained directly in certain contingencies, including when the order or proceedings are wholly without jurisdiction. (iv) In light of the judgment in M/s. Canon India Private Limited, which unequivocally dealt with the jurisdiction of the Officers of DRI, there was no necessity for re-adjudication. Thus, the question of relegating the party to avail of the statutory remedy did not arise. 3) Res Judicata: (i) The second respondent contended that the issue arising out of the show-cause notice dated 07.01.2008 could not be reexamined due to a previous litigation culminating in the order of the Apex Court in the case of Givaudan India Pvt. Ltd. vs. Commissioner of Customs, Bangalore. (ii) The petitioners argued that the assessment proceedings for each year constitute separate units of adjudication, and any finding for a particular assessment year cannot affect subsequent proceedings for different assessment years. (iii) The subject matter of the present dispute related to undervaluation, as asserted in Para 3 of the show-cause notice dated 07.01.2008, whereas the previous litigation related to the applicability of a particular tariff. (iv) The distinct nature of the disputes was clear, and the question of res judicata was not a bar to the present proceedings nor necessitated relegating the authority to avail of the statutory remedy of appeal. 4) Suppression of Material Fact: (i) The respondents contended that the petitioners should not be permitted to avail of the equitable, discretionary jurisdiction under Article 226 due to their conduct. (ii) It was noted that the findings by the courts relating to wrong declarations in earlier litigation did not affect the present case, which related to valuation. (iii) The question of appropriateness of valuation was still to be adjudicated, and any finding regarding misleading declaration would be impermissible as it would amount to prejudging the issue. (iv) The other grounds regarding non-revelation of other litigations were rejected in light of the discussion on res judicata. 5) Applicability of judgment in M/s. Canon India Private Limited: (i) The present proceedings related to a show-cause notice dated 07.01.2008, which was prior to the 2011 amendments to the Customs Act. (ii) The Apex Court in M/s. Canon India Private Limited clarified that only 'the proper officer' could adjudicate matters under Section 28 of the Customs Act. (iii) The Court found that the Additional Director General of DRI was not 'the proper officer' as defined under the Act. (iv) The notification issued by the Central Board of Excise and Customs under Section 2(34) was insufficient to confer the necessary powers, as only Section 6 of the Customs Act provides for such entrustment. (v) The Apex Court concluded that the proceedings initiated by the Additional Director General of DRI were invalid and without authority of law. (vi) Applying this law, the show-cause notice dated 07.01.2008 was set aside as it was not issued by 'the proper officer'. Conclusion: The writ petitions were allowed, and the Order-in-original dated 27.02.2017 was set aside. The authorities were granted liberty to initiate fresh proceedings as per the law. The oral request to keep the order in abeyance was refused, as the Court's decision was based on the binding judgment of the Apex Court in M/s. Canon India Private Limited.
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