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TMI Blog2013 (4) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... the quashing of the proceedings in the present case. The Petitioners have the full range of defences open in regard to the notice to show cause in the course of adjudication proceedings. No merit in the Petition. The Petition is dismissed. - Writ Petition No. 238 of 2013 - - - Dated:- 12-4-2013 - DR. D. Y. Chandrachud And A. A. Sayed, JJ. For the Petitioners : Mr. Venkatesh R. Dhond, Senior Advocate with Mr.Shyam Kapadia i/b. M/s. A. Mehta Laljee Co. For the Respondents : Ms. S. I. Shah with Ms. Suchitra Kamble. JUDGMENT (Per DR. D. Y. Chandrachud, J.) :- The Petitioners seek to challenge the legality of a notice to show cause dated 22 September 2000, issued by the Deputy Commissioner of Customs and a communication dated 18 December 2012 of the Superintendent of Customs intimating that a personal hearing of the case has been fixed on 18 January 2013. 2. On 28 December 1996, a notice to show cause was issued to Beacon Maritime Carriers Pvt. Ltd. for a failure to export and to account for 59 cargo containers. During the course of the personal hearing on 25 June 1997, the adjudicating authority was informed by the Advocate appearing for the noticee tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company of Saudi Arabia, and further to pay all and any sums whatsoever outstanding due and/or payable by Sentrans Maritime Pvt. Ltd., on demand, without any protest or demur, in respect of vessel and/or container/cargo-related matters in any manner associated with Sentrans Maritime Pvt. Ltd. having acted as agents for NSCSA and accordingly, we request you to direct all show cause notices, orders, demands, etc. directly to us, instead of Sentrans Maritime Pvt. Ltd., and also hereby request you to release Sentrans Maritime Pvt. Ltd. from all responsibilities and liabilities in this behalf, in respect of all penalties, duties, fines or otherwise, whether determined or to be determined, presently pending or outstanding, as well as future custom claims and/or penalties, in respect of vessels and/or cargoes in any manner relating to The National Shipping Company of Saudi Arabia's operations. Furthermore, in pursuance of specifically conferred authority, we confirm having undertaken to hold Sentrans Maritime Pvt. Ltd. fully and completely indemnified and harmless in respect of the aforesaid matters. Accordingly, we now hereby request you to kindly release Sentrans Maritime Pvt. Ltd. fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been filed in these proceedings by the Deputy Commissioner of Customs on 26 February 2013 and 21 March 2013. 10. The material on the record would indicate that from time to time, the principal shipping agency in Saudi Arabia informed the Customs Department of the termination of the contract, firstly with Beacon Maritime Carriers Pvt.Ltd. in whose place DBC Freight International was appointed; secondly, upon the termination of the contract of DBC Freight International, Sentrans Maritime Pvt. Ltd. was appointed as agent; and thirdly, upon the termination of the contract of the second agent, in its place the Petitioners were appointed as agents. By their letter dated 19 August 2002 (Annexure R- 9 to the reply), the Petitioners unconditionally agreed and undertook to satisfactorily account for all cargo covered in all IGMs filed by the previous agent on behalf of the principal shipping agency in Saudi Arabia. Moreover, the Petitioners undertook to pay all sums whatsoever outstanding, due and/or payable in respect of vessel and/or the container/cargo-related matters. The Petitioners specifically stated that all notices should be issued to them instead and in place of the previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsibilities instead and in place of the previous agent. 11. The issue as to whether the original notice to show cause was beyond limitation is a point which can be urged before and decided by the adjudicating authority. Prior to its substitution by Act 8 of 2011, Section 28 stipulated that where any duty has not been levied or has been short levied or erroneously refunded, the proper officer should serve a notice under clause (b) within six months on the person chargeable with the duty or interest. Under the proviso, as it then stood, an extended period of five years was provided in the event of a collusion, mis-statement or suppression of facts by the importer, exporter or the agent or employee of the importer or exporter. We are not inclined, in the present case, to render a finding on this aspect since it involves a mixed question of law and fact which must be determined in the adjudicating proceedings. Similarly, it would not be appropriate for the Court to make any adjudication on the merits of the defence which is urged by the Petitioners since that is essentially a matter of adjudication. Counsel appearing on behalf of the Petitioners has sought to rely upon a judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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