2019 (6) TMI 974 - HC - Customs

Jurisdiction - invocation of provisions of Section 18 of the Customs Act, 1962 - HELD THAT - The impugned order is without jurisdiction when it proposes to invoke the provisions of Section 18 of the Customs Act, 1962 - reliance placed in the case of JAJU PETRO CHEMICAL PVT. LTD. ANOTHER VERSUS THE COMMISSIONER OF CUSTOMS (PORT) OTHERS 2017 (7) TMI 633 - CALCUTTA HIGH COURT . The action of the authorities in reclassifying the same product after its writing dated December 16, 2015 and requiring the petitioners to revert to Serial No. 2202 10 10 is unacceptable. Notwithstanding the petitioners having a statutory alternative remedy by way of an appeal, the writ petition is maintainable, if the petitioners substantiate that, fundamental rights of the petitioners stand breached or that, the impugned order is without jurisdiction or was passed in breach of the principles of natural justice is non-speaking. The impugned order-in-original is without jurisdiction and is dismissed.

Summary

Issues:
Challenge to show cause notice and order-in-original on the ground of lack of jurisdiction.

Analysis:
The petitioners imported "Power Energy Drinks" initially classified under Serial No. 2202 10 10, later directed by the department to reclassify under Serial Number 2202 90 90. The petitioners complied and paid the differential amount. Subsequent imports were also classified under 2202 90 90, leading to an impugned show cause notice with five queries, including classification under 2202 10 90, recovery of differential duty, interest, penalty, and enforcement of the bond.

The petitioners responded to the show cause notice, but the adjudicating authority held the goods correctly classifiable under 2202 10 90, rejecting the declared classification under 2202 90 90. The bills of entry provisionally assessed were now finally assessed under 2202 10 90, with recovery of duty, interest, and refraining from imposing penalties as the Board rescinded the regulations on provisional duty assessment.

The court found the impugned order without jurisdiction as it proposed invoking Section 18 of the Customs Act, 1962 before provisional assessment. Citing relevant cases, the court noted the authorities' unacceptable reclassification of the product and the availability of statutory appeal remedies. However, the court found the impugned order-in-original to be without jurisdiction, leading to the quashing of the show cause notice and order-in-original.

In conclusion, the writ petition challenging the lack of jurisdiction in the impugned order was upheld, resulting in the quashing of the show cause notice and order-in-original, with the case being disposed of.