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2021 (10) TMI 1267 - HC - CustomsJurisdiction - power of DRI to issue SCN u/s 28 of Customs Act - DRI are Proper Officers or not - availability of alternate remedy of appeal - HELD THAT - The issue in the present case is squarely covered by the decision in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT where it was held that The entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters are invalid without any authority of law and liable to be set-aside. In the present case, the entire proceedings are initiated by the respondent No. 2 - Joint Director, DRI, Mumbai, by issuing the show cause notice are invalid, without any authority of law and liable to be set aside and ensuing demands are also liable to be set aside. Availability of alternate remedy to challenge the impugned order - HELD THAT - The alternative remedy would not operate as a bar, as the proceedings initiated by the respondent No.2 are wholly without jurisdiction. The show-cause notice is totally non est in the eyes of law for absolute want of jurisdiction of the authority which issued it - Petition allowed.
Issues:
Challenge to order-in-appeal confirming show cause notice under Customs Act, 1962; Jurisdiction of Directorate of Revenue Intelligence (DRI) to issue show cause notice; Availability of alternate remedy under Section 129A of the Customs Act; Writ jurisdiction under Article 226 of the Constitution of India; Validity of show cause notice issued by DRI; Set aside of order-in-appeal, original order, and show cause notice. Analysis: Issue 1: Challenge to order-in-appeal The petitioners challenged an order-in-appeal confirming a show cause notice under the Customs Act, 1962. The petitioners imported stainless steel products under an advance license, claiming exemption benefits. The Directorate of Revenue Intelligence (DRI) issued a show cause notice for levying Countervailing Duty (CVD) on the imports. The order-in-original confirmed the show cause notice, leading to the petitioners filing appeals, which were subsequently rejected. Issue 2: Jurisdiction of DRI to issue show cause notice The petitioners contended that the DRI, as the issuing authority of the show cause notice, lacked the legal authority to do so under the Customs Act. Citing the Supreme Court's decision in a similar case, it was argued that the DRI was not a proper officer within the meaning of the Act to issue such notices. The Court found that the show cause notice was invalid and lacked authority in law, leading to the set aside of the notice and associated demands. Issue 3: Availability of alternate remedy under Section 129A The respondents argued that the petitioners had an alternate efficacious remedy under Section 129A of the Customs Act to challenge the impugned order by filing an appeal before the Appellate Tribunal. However, the Court held that in cases where the order or proceedings are wholly without jurisdiction, the alternative remedy would not bar the Court's intervention. Citing legal precedents, the Court concluded that the lack of jurisdiction of the issuing authority justified the Court's intervention despite the availability of an alternate remedy. Issue 4: Writ jurisdiction under Article 226 The Court invoked its writ jurisdiction under Article 226 of the Constitution of India to set aside the show cause notice, order-in-appeal, and original order due to the lack of jurisdiction of the DRI in issuing the notice. Citing previous decisions and legal principles, the Court emphasized that the writ jurisdiction could be invoked when fundamental rights, natural justice principles, or jurisdictional issues were at stake, justifying the intervention in this case. Issue 5: Validity of show cause notice issued by DRI The Court, relying on Supreme Court decisions and legal precedents, found that the show cause notice issued by the DRI lacked authority and was invalid. The Court held that the entire proceedings initiated by the DRI were without jurisdiction and set aside the show cause notice, order-in-appeal, and original order. Conclusion: The High Court allowed the writ petition, setting aside the show cause notice, order-in-appeal, and original order. The Court clarified that its decision did not prevent competent authorities from proceeding against the petitioners in accordance with the law. The judgment highlighted the importance of jurisdictional issues and the Court's role in upholding legal principles even when alternate remedies are available.
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