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TMI Blog2014 (2) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... f the classification. As a matter of fact, the very notice issued is for finalization of the classification on the basis of the proposal and the prima facie opinion of the department rejecting the classification presented by the petitioner. - same is not without jurisdiction. Appellant contended that if the adjudication were to be undertaken by the Commissioner, the petitioner would lose its valuable right to appeal. - If the Commissioner under the provisions of the Act and the Rules framed thereunder is competent to adjudicate certain issues, merely because the noticee in such case may lose one stage of appeal would not render the action of the Commissioner per se without jurisdiction. - Decided against assessee. - SPECIAL CIVIL APPLICATION NO. 447 of 2014 - - - Dated:- 30-1-2014 - Akil Kureshi And Sonia Gokani, JJ. For the Appellant : Mr Kamal Trivedi, Sr Adv. With Mr Maulik Nanavati Ms Nikita Mehta, Adv. JUDGEMENT : - PER : Akil Kureshi Petitioner has challenged the validity of the show cause notice dated 7.10.2013 issue by the Commissioner of Customs, Kandla as wholly without jurisdiction. Short facts are as under: The petitioner imported coal in two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undred and Sixteen only) on the 37,000.00 MTs of imported impugned Coal as detailed in Annexure-B to this Notice, should not be recovered from them under Section 18(2) of the Customs Act, 1962/the bond executed during the provisional assessment/Section 28 of Customs Act, 1962. (iv) The said amount of Rs.2,35,27,516/- (Rupees Two Crores Thirty Five Lakhs Twenty Seven Thousand Five Hundred and Sixteen only) deposited by them vide TR6 Chellan No.109/12-13 dated 04.03.2013 towards payment of differential Customs duty in imports of Bituminous Coal vide B/E No. No.9035613 dated 16.01.2013 already Customs Cleared consignment, shown at Sr.No.1 of Annexure-B to this Notice should not be appropriated and adjusted towards their duty liability mentioned at (iii) above. (v) Interest should not be recovered from them on the said differential Customs duty, as at (iii) above, under Sections 18(3) of the Customs Act, 1962/under section 28AA of the Customs Act, 1962. (vi) Penalty should not be imposed on them under Section 112(a) of the Customs Act,1962. It is this show cause notice that the petitioner has challenged only on the ground that even before finalisation of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted. 5. In case of Commissioner of Customs and Central Excise and ors. vs. M/s. Charminar Nonwovens Ltd. reported in 2004 AIR SCW 3122 the Department had challenged the Excise judgement of the High Court. There was a dispute between the manufacturer and the department with respect to classification of certain goods. The department had issued detention order and also a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eam coal and none other and/or that there was no mis-declaration on part of the petitioner. In any case these issues involve highly disputed questions of facts. We would therefore, be well adviced not to undertake such exercise in a writ petition. 7. All the more so, since after the show cause notice is, adjudicated, the order that may be passed by the Commissioner if adverse to the petitioner could be challenged by way of a statutory appeal first before the Tribunal and thereafter before the High Court or the Supreme Court in further tax appeal depending on the subject matter. When the statute provides for such detailed mechanism for adjudication of disputes between the department and the importer, we would not like to short-circuit such proceedings and plunge straightaway into examining such questions in a writ jurisdiction at the first instance. In a recent decision, in case of Union of India vs. Guwahati Carbon Ltd. reported in (2012) 278 ELT 26 (SC), the Apex Court while commenting on the tendency of the High Court to entertain a writ petition where against the judgement of the Tribunal appeal to the Supreme Court was maintainable, held and observed as under: 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is only when even after final assessment an payment of duties, it is found that there has been a short-levy or non-levy of duty, the Excise Officer is empowered to take proceedings under Section 11-A within the period of limitation after issuing a show cause notice. In such a case, limitation period will run from the date of the final assessment. The scope of Section 11- A and Rule 173I is quite different. In this case, the provisional assessment earlier made by the proper officer has been quashed and pursuant to the direction of the High Court, the proper officer has made the final assessment. No question of failure of issuance of show cause notice under, section 11-A arises in this case. Even otherwise, we do not find any infirmity in the order of the Tribunal. Our attention was also drawn to a decision of the Supreme Court in the case of Commissioner of Central Excise Customs v. ITC Ltd., (2007) 1 SCC 62 in which relying on the decision in the case of Serai Kella Glass Works Pvt. Ltd. (supra) and referring to the relevant provisions of the Central Excise Act and the Rules thereunder, the Supreme Court observed that the amount becomes payable only in the event the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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