2015 (11) TMI 950 - HC - Customs

Validity of SCN u/s section 28 read with section 124 - final assessment not done - Held that - Respondents states that the show cause notice clearly indicates that final assessment has already been made but since a factual dispute is raised as to whether the final assessment has been made or not this Court feels that the matter should be decided upon exchange of affidavits. In view of the exposition of law laid down in the two reports this Court feels that the petitioner is entitled to an interim protection as he has made out a prima facie case. The respondent authorities are restrained from taking any steps or further steps on the basis of the impugned show cause notice for a period of eight weeks from date or a further order whichever is earlier - Stay granted.

Summary

Issues:
Assault on show cause notice issued under Customs Act before final assessment, reliance on judgments, final assessment not made, provisional assessment, interim protection granted.

Analysis:
The petitioner challenged a show cause notice issued under section 28 read with section 124 of the Customs Act before the final assessment under section 18, citing a judgment in A.S. Syndicate (Warehousing) P. Ltd. vs. Commissioner of Customs (Port). The Bombay High Court in Commissioner of Customs (Import), Mumbai vs. Mahesh India held that a show cause notice cannot be sustained if the final assessment is not completed. The petitioner claimed final assessment was not done, and goods were released on provisional assessment. The court noted a factual dispute and ordered affidavits exchange for clarification. Considering the legal precedents, the court granted interim protection to the petitioner, restraining authorities from taking further steps based on the notice for eight weeks or until further order.

The court directed each respondent to file an affidavit-in-opposition within three weeks, with a reply due within a week thereafter. The case was scheduled to appear after four weeks under the heading "Court Application." The judgment reflects a meticulous analysis of the legal provisions, previous judgments, and the specific circumstances of the case. It upholds the principles of natural justice by allowing both parties to present their arguments through affidavits and replies. The court's decision to grant interim protection demonstrates a balanced approach to ensure fairness and prevent any prejudicial actions based on the disputed show cause notice. The judgment showcases a careful consideration of legal arguments, factual disputes, and the need for procedural fairness in customs matters.