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2024 (7) TMI 1326 - HC - CustomsSecond SCN issued, pending adjudication of first SCN, withdrawn subsequently - jurisdiction of first SCN - It is contended that the second show cause notice was issued on the same cause of action and after dropping of the first show cause notice, based on the second show cause notice proceedings could not be initiated - HELD THAT - The withdrawal of the first show cause notice was after issuance of the second show cause notice. The question, if Section 28 (4) of the Act with respect to the period of limitation of 5 years, is attracted or not, at this stage, depends on the contents in the notice, which contains the averment of suppression of facts. Whether there was suppression of fact or not cannot be determined at this stage by this Court in the exercise of review jurisdiction, or even in the exercise of the writ jurisdiction under Article 226 of the Constitution of India, it being a question of fact and requiring evidence/material to establish or negative the same. On the face of the second show cause notice, the submission is not acceptable, that Section 28 (4) of the Act is not attracted. By the judgment under review the petitioner has the opportunity to submit reply and before the authority it can be demonstrated that there was no suppression of fact. In the present case, the dropping of the first show cause notice vide letter dated 17.05.2023 is after issuance of the second show cause notice for demand of differential amount, not identical amount, and clearly stating in the withdrawal letter about the second show cause notice dated 10.04.2023 also mentioning for the said purpose, the first show cause notice, was thereby withdrawn. Here, the second show cause notice is not after withdrawal of the first show cause notice nor for identical amount. The second show cause notice is within 5 years limitation under Section 28 (4) of the Act. In Swatch Group India Pvt. Ltd. 2023 (8) TMI 864 - DELHI HIGH COURT , the show cause notice under Sections 28 and 124 of the Customs Act, was dated 14.02.2018 and the corrigendum was dated 28.02.2018. Section 28 (9) of the Customs Act was amended on 29.03.2018. The notice and corrigendum as issued in the said case was prior to the amendment. The Delhi High Court considered the explanation to the Section 28 (9) of the Customs Act which specifically provided that in cases where the notice had been issued after the 14th day of May, 2015 but before the date on which the Finance Bill, 2018 received the assent of the President, the said notice shall continue to be governed by the provisions of Section 28 of the Customs Act as it stood immediately prior to the amendment - In the present case, the show cause notices are after the amendment and consequently, the same shall not be governed by the unamended provision of Section 28 of the Act. The judgment in the case of Swatch Group India Pvt. Ltd. of the Delhi High Court is therefore not on the point as raised in the present review petition. Under the guise of review the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and considered. The review petitioner is also not permitted to raise new grounds, new arguments, which were not taken or not argued by the writ petitioner s counsel, after engaging a new counsel in the review petition - In Vadde Pavan Kumar 2024 (5) TMI 1451 - ANDHRA PRADESH HIGH COURT , on the scope of review jurisdiction, a coordinate Bench of this Court, after referring to various pronouncements of the Hon ble the Apex Court, reiterated that under the grab of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. In Smt. Krishna Pathak v. Vinod Shankar Tiwari 2005 (2) TMI 914 - ALLAHABAD HIGH COURT the Allahabad High Court held that if a counsel has argued a case to his satisfaction and he had not raised the particular point for any reason whatsoever, it cannot be a ground of review for the reason that he was the master of his case and might not have considered it proper to press the same or could have thought that arguing that point would not serve any purpose. If a case has been decided after full consideration of arguments made by a counsel, he cannot be permitted, even under the garb of doing justice or substantial justice, to engage the Court again to decide the controversy already decided. There are no error apparent in the judgment under review - By the judgment under review, the petitioner has the opportunity to file response to the show cause notice, which we have not restricted. It is open for the review petitioner to raise such objection, as may be open under law and as may be advised, including the objection of jurisdiction - No case for review is made out to reopen the proceedings of the writ petition. The Review Petition is dismissed.
Issues Involved:
1. Jurisdiction of the first show cause notice. 2. Validity and authority of the second show cause notice. 3. Compliance with the limitation period under Section 28 of the Customs Act, 1962. 4. Applicability of the extended period of limitation under Section 28(4) due to alleged suppression or mis-declaration. 5. Withdrawal of the first show cause notice and its implications. 6. Review of the court's observations and conclusions. Issue-wise Detailed Analysis: 1. Jurisdiction of the First Show Cause Notice: The petitioner argued that the first show cause notice dated 24.03.2022 was without jurisdiction as it was issued by the Deputy Commissioner of Customs, who was not competent to issue the notice. The petitioner contended that the determination was not made by the proper officer within the period of one year, rendering the first show cause notice concluded by 23.03.2023. 2. Validity and Authority of the Second Show Cause Notice: The second show cause notice dated 10.04.2023 was issued by the Principal Commissioner of Customs, Air Cargo Complex, Chennai-VII, Chennai, after the first show cause notice was withdrawn on 17.05.2023. The respondents argued that the second show cause notice was issued by the competent authority and included additional bills, thus there was no illegality in its issuance. 3. Compliance with the Limitation Period Under Section 28 of the Customs Act, 1962: The petitioner submitted that the goods were imported between 14.04.2018 and 04.09.2019 and cleared after verification under Section 17 of the Act. The limitation period for serving a notice under Section 28(1) ended on 03.09.2021, and the first show cause notice was issued on 24.03.2022 under Section 28(4), alleging suppression of facts. The petitioner argued that the extended period of limitation under Section 28(4) was wrongly invoked. 4. Applicability of the Extended Period of Limitation Under Section 28(4) Due to Alleged Suppression or Mis-declaration: The petitioner contended that the extended period of limitation under Section 28(4) is subject to strict compliance with Section 28(9). The petitioner argued that there was no evidence of extension granted by a superior officer, and the first show cause notice was deemed concluded by 23.03.2023. The petitioner relied on the case of Hyderabad Polymers (P) Ltd. v. CCE to argue that once the earlier show cause notice on a similar issue was dropped, suppression could not be claimed. 5. Withdrawal of the First Show Cause Notice and Its Implications: The petitioner argued that the withdrawal of the first show cause notice on 17.05.2023 had the effect of dropping the proceedings, and the extended period of limitation under Section 28(4) would not be available. The petitioner contended that the second show cause notice issued on 10.04.2023 was without authority as it was issued after the first notice was deemed concluded. 6. Review of the Court's Observations and Conclusions: The petitioner sought a review of the court's judgment, arguing that the court proceeded on presumptions and assumptions. The petitioner contended that the court's observation in para-12 of the judgment was contrary to the pleadings in the writ petition. The petitioner argued that the court erroneously assumed that the period for determination of duty under Section 28(8) could be extended if not already extended. The petitioner relied on the case of Yashwant Sinha v. CBI to argue that a misconception by the court about a concession by the counsel furnishes a ground for review. Court's Analysis and Conclusion: The court held that there was no error apparent on the face of the record and that the review petition was an attempt to reargue the case on merits, which is not permissible. The court observed that the period for determination of duty under Section 28(9) is extendable, and there was no specific averment that the extension was not granted. The court found that the petitioner did not raise certain arguments in the writ petition, and new grounds cannot be raised in a review petition. The court dismissed the review petition, allowing the petitioner to file a response to the show cause notice before the authority concerned.
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