2019 (1) TMI 335 - HC - Customs

Detention Order u/s 142 1(a)(b) of the Customs Act, 1962 - recovery of Duty Drawback - petition for rectification of mistake is pending before the first respondent - Held that - There is no dispute to the fact that the order of the Adjudicating Authority, which was confirmed in appeal has not reached its finality, as admittedly, the rectification petition filed by the petitioner is still pending before the first respondent and that the same is posted for hearing on 31.01.2019. The order to be passed in the rectification petition will certainly have a bearing on the subject matter in issue and therefore, this Court is of the view that in all fairness, the respondents can await till an order is passed in the rectification petition - petition is disposed of, only by directing the respondents to keep the detention notice in abeyance, till the disposal of the rectification petition by the first respondent.

Summary

Issues:
Challenge against detention notice under Customs Act, 1962 - Demand and recovery of duty drawback - Imposition of penalty - Dismissal of appeal - Rectification of mistake petition pending - Hardship caused by detention notice - Merits of the order in original - Await decision on rectification petition.

Analysis:
The petitioner, a Company, exported goods and claimed 100% duty drawback as a merchant exporter. A show cause notice was issued demanding duty drawback recovery, interest, and penalty, which was confirmed by the second respondent. An appeal was dismissed, alleging irregular and fraudulent drawback claim. A petition for rectification of mistake was filed and is pending. The detention notice was issued during this period, causing hardship. The petitioner argued against sustaining the notice due to the pending rectification petition.

The standing counsel for the respondents acknowledged the pending rectification petition and suggested that the merits of the original order cannot be raised in the current writ petition. The court noted that the order in original has not reached finality, and the rectification petition will impact the matter. The court directed to keep the detention notice in abeyance until the rectification petition is disposed of by the first respondent, without expressing any view on the merits of the contentions raised by the petitioner against the order of adjudication.

The judgment emphasized fairness in awaiting the outcome of the rectification petition before making a decision on the detention notice. The court highlighted the importance of the pending rectification petition and its potential impact on the subject matter in issue. By directing the respondents to keep the detention notice in abeyance, the court ensured that the petitioner's rights were protected until a decision is made on the rectification petition. The judgment concluded by closing the connected miscellaneous petitions.