9911796707
TMI Blog2013 (9) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner made applications before the Development Commissioner seeking permission for sale of the said goods to the indigenous buyers - Petitioner urged that the said permission was subject to payment of duty of customs by the third party purchaser - Admittedly, petitioner in pursuance to the permission granted by the Development Commissioner sold and delivered it to one third party buyer - Petitioner had claimed that the third party purchaser cleared the goods on payment on duties payable to customs as determined by the Customs Authorities. The petitioner had not taken any steps to appear before the Customs Authorities and submits their representation either orally or in writing/ they straight way had come before this Court challenging the legality and propriety of the notices - The authority concerned had not yet taken any action in pursuance to their notice served upon the present petition - Both the parties raised some points involving the question of law as well as facts which required to be adjudicated by the Authority concern upon submission of representation to the show cause notice - There were provisions in the law to move before higher forum if the petitioner was agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tems for the purpose of using the same for its manufacturing purpose. However, during manufacturing certain imported materials were let out and could not be used for manufacturing in the said unit of the petitioner. The petitioner made several applications before the Development Commissioner, Falta Special Economic Zone seeking permission of sale there of to the indigenous buyers under domestic tariff, so that the said goods may be purchased by the third party against payment a duty of custom as applicable. The Development Commissioner duly granted permission for Domestic Tariffs are sale of the said stock. The petitioner in terms of the said permission sold and delivered its stock to Enfield Industries Limited, of 9, Vivekananda Road, Kolkata 7, under Domestic Tariff Area. The said goods were cleared by the Enfield Industries Limited upon payment of duty of customs as determined by the Authorities. The petitioner was served a notice to show cause on July 22, 2004, by the Assistant Commissioner of Customs, Falta, Special Economic Zone as to why anti damping duty were not levied on the goods, sold by the petitioner to Enfield Industries Limited and also to show cause as to why the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Area so that the goods may be purchased by the third parties against the payment of duty of customs as applicable. Development Commissioner granted permission under letter No.FEPZ/LIC/P-10/97/15318 dated March 14, 2002 and FEPZ/LIC/P- 10/97/74 dated April 2, 2002 for domestic tariff area sale of the said stock by the petitioner. In view of the said permission petitioner sold and delivered the stock to Enfield Industries Limited, who cleared the goods on payment of duty as determined by the Customs Authorities. In view of the provisions of Customs Act a person seeking clearance of goods from warehouse is to file De-bonding Bill of Entry for home consumption and to the liability to pay the duty is on the importer. The Enfield industries Limited are liable to pay the duty in regard to the goods so cleared by them under any case. The petitioner cannot be held liable for the same. The action of the respondent is otherwise bad in law. There is no scope for any demand for justice. It is further submitted that there is no allegations of fraud by the Customs Authorities and, in fact, no demand was made earlier at the time of clearance of the goods from the warehouse. The notice of dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the unit i.e. the present writ petitioner company imported Acrylonitrile Butadiene Rubber (NBR), Contained in the 6,000 baggages weighing 210 metric ton (collectively of South Korian origin) where found to be under invoiced and accordingly the said unit price was enhanced to u/S #900 per Metric ton CMT CIF on the basis of units consent endorse on the rebuts of the original copies of the said Bills of entries. In the said show cause notice at Paragraph 5 it has been stated that the permission for DTA clearance by the unit were made subject to compliance with the customs and excise guidelines and regulations and on payment of applicable duties. It has been alleged in the said show cause notice in paragraph 7 that the goods of Korian origin imported by the unit falls under customs tariff holding No.4002.59 and chargeable to anti damping duty. The unit did not pay such duty at the time of DTA Clearance. As a result there is a short levy of duty to the tune of ₹ 69,49,635/- (Rupees Sixty nine lakh fourty nine thousand six hundred and thirty five only) which was equivalent to the anti-dumping duty. On such circumstances the authority having its competence to raise any legitima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r may be taken by the Authority concern. In a case decided by Hon ble Division Bench of this High Court reported in 1991 (53) E.L.T 234 (Calcutta), it has been observed that show cause notice issued by Statutory Authority may be challenged before Writ Court only on ground of where no case have been made out against the petitioner. Otherwise, adjudicating authority is to find and decide all questions including question of facts. High Court should not enquire into the correctness of facts. Ordinarily a writ petition is not maintainable against a show cause notice in as much as when a show cause notice is issued, the party gets an opportunity to place his case before the Authority concerned and there is elaborate procedure by way of an appeal and the revision against such order passed in such proceeding. In view of the facts and circumstances stated as above and also in view of the observations by their Lordships in the case reported in 1991(53) E.L.T. 234 (Calcutta), among I am of the opinion that it is not the proper stage for a writ court to interfere into the alleged matter as the authority concerned has made out a prima facie case which required to be adjudicated. So writ c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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