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TMI Blog2009 (4) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... ntend that the respondent no. 3 has no jurisdiction and consequently the show cause notice dated 17th/19th November, 2008 is without jurisdiction. 2. A few facts may be set out : The Petitioners have imported an aircraft to be operated for Non-scheduled (Passenger) Air Transport Services. The import of aircraft for the said purpose is exempt from customs duty. The respondent no. 3 attached the aircraft as in their opinion, the same was being used in contravention of the import conditions and as such the petitioners were liable to pay income tax. Against the order of confiscation, the petitioners herein filed a Writ Petition being Writ Petition No. 2009 of 2008 which was disposed of on 18th September, 2008. The prayer clauses in the said Writ Petition read as under: Petitioners therefore pray : (a) that this Hon ble Court be pleased to issue a Writ of Certiorari or a writ, order or direction in the nature of certiorari, calling for the records before respondent nos. 2 to 5 and after probing into the legality, propriety and validity of the seizure of the said aircraft and provisional release thereof against bank guarantee, to quash and set aside the said impugned seizure and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period of 120 months. Subsequent to obtaining NSOP (passenger) permit, M/s. IACO allowed the aircraft to be used by its director Shri P.N. Dhoot, Shri V.N. Dhoot who is the Chairman of M/s. VIL, and their guests and relatives. On scrutiny of the flight log book, passenger manifest and details of invoices it is found that for the period 19-1-2008 to 22-9-2008 (up to which the details were submitted), out of total 328 hrs and 5 minutes of flying 184 hrs and 55 minutes were used by M/s. VIL. 18. On scrutiny of the passenger manifest (RUD)-10) submitted by M/s. IACO it was found that the director of M/s. IAC, Shri P.N. Dhoot had extensively used the aircraft. The details of travels made by the director of M/s. IACO Shri P.N. Dhoot and his relatives/family friends are as follows : . No. Director and his relatives of the company has travelled Date From - To 1. R.N. Dhoot 19-7-08 Aurangabad to Mumbai 2. V.N. Dhoot P.N. Dhoot 27-6-08 Ahmedabad to Mumbai 3. P.N. Dhoot R.N. Dhoot V.N. Dhoot 27-6-08 Mumbai to Ahmedabad 4. P.N. Dhoot R.N. Dhoot V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take action for violation of the provisions of the Customs Act, Rules and Notification issued. The respondent no. 2 it is submitted is working in a different field. The respondent no. 2 is an authority for regularisation of the operations of the aircraft, their registration, maintenance and safety norms etc. The renewal of permit is within the jurisdiction of DGCA. In the instant case, the respondents have issued the show cause notice on the ground of violation of customs notification and the conditions of licence issued by DGCA. 7. A rejoinder has been filed on behalf of the petitioners herein. 8. We may also mention that the petitioners pursuant to the confiscation of the aircraft had given a bond and a bank guarantee which has been accepted by the Chief Commissioner of Customs (Preventive), Delhi. The bond is in the sum of Rs. 26 crores and bank guarantee of Rs. 6.5 crores. This is evident by letter dated 1st August, 2008 by the Assistant Commissioner of Customs (Preventive) addressed to the Additional Commissioner (AIE). The petitioners by their communication of 1st August, 2008 have submitted the bond and a bank guarantee for the like amount to the respondent no. 3. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if on a construction of the provisions the respondent has no jurisdiction to initiate proceedings or make an inquiry the Court can certainly prohibit the authorities from proceeding with the same. Reliance is also placed in the case of Hindalco Industries 2003 (5) SCC 194 as also in some other judgments. The respondent authorities have placed reliance on the judgment of the Supreme Court in Special Director v. Mohd. Ghulam Ghouse - 2004 (164) E.L.T. 141 (S.C.) and we may gainfully reproduce the following paragraphs : This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions, should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respondent to the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It is for the petitioners to point out that the allegations as contained in the show cause notice are non-existent or cannot lead to withdrawal of the exemption benefit. This is not a case of patent lack of jurisdiction in the respondent no. 3. Admittedly, the show cause notice proceeds on the footing that the petitioners have violated the provisions of the Customs Act, Rules and Notifications by allowing use of the aircraft for the purposes other than which for NOC had been granted for its import and exempted from customs duty. On facts herein the case would be squarely covered by the ratio of the judgment in Mohd. Ghulam Ghouse (supra). 13. For all the aforesaid reasons, in our opinion, this would not be a fit case for this Court to exercise its extra ordinary jurisdiction. It would be open to the petitioners to raise all contentions available before the respondent no. 3 and it is for the respondent no. 3 to decide the same including lack of jurisdiction. Prima facie, the observations made while dismissing the petition will not stand in the way of the petitioners urging its contentions and it is for respondent no. 3 to decide the matters on merits uninfluenced by our prima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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