2015 (1) TMI 619 - HC - Customs

Imposition of penalty - Violation of principle of natural justice - Non issuance of SCN - Held that - Nothing in the records to suggest that the writ petitioner was interested in issuance of a formal show cause notice. There was not a single letter inquiring as to why the show cause notice had not been issued. Even after the representatives of the writ petitioner allegedly met the customs officials, there was no correspondence on record making a complaint that the adjudication process was continuing without issuance of a show cause notice. Issuance of the show cause notice had been expressly or impliedly waived by the writ petitioner. - If that is the situation then there is no element of natural justice involved by which the jurisdiction of this Court under Article 226 of the Constitution can be invoked. - Decided against appellants.

Summary

Issues:
Challenge to adjudication order by Customs Clearing House Agent, absence of show cause notice, imposition of penalty.

Analysis:
The judgment concerns a writ challenging an adjudication order issued by the Commissioner of Customs (Port), Kolkata. The petitioner, a Customs Clearing House Agent, contested the order on the grounds of not being issued a show cause notice and the unjust imposition of a penalty of Rs. 1 lakh. The case revolved around the importation of yellow peas, duty exemption, unloading procedures, and transportation responsibilities. The Customs department held the petitioner accountable for breaching duties related to unloading and transportation, citing a guarantee bearing the petitioner's signature provided by the importer.

The petitioner argued that their responsibility was limited to unloading in Kolkata and that they were unfairly targeted. The Revenue's Counsel contended that the petitioner's representatives had waived the formal show cause notice requirement. The Court noted the absence of correspondence indicating a complaint about the lack of a show cause notice, leading to the prima facie finding that the notice had been waived by the petitioner, thereby not invoking natural justice under Article 226 of the Constitution.

The Court decided not to entertain the writ application, directing the petitioner to appeal before the Customs Excise and Service Tax Appellate Tribunal for a thorough evaluation of evidence regarding the guarantee, unloading responsibilities, and safe passage to Kolkata. The Tribunal was granted the authority to remand factual questions to the Commissioner if necessary. To facilitate the petitioner's approach to the Tribunal and interim orders, coercive recovery steps for the penalty were stayed until a specified date or further Tribunal orders. The judgment concluded by disposing of the writ application and offering certified copies of the order to the parties upon request.