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TMI Blog2014 (9) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or imposing any penalty or person shall be made unless the owner of the goods or such person is given a notice in writing with the prior approval of the officer of the customs not below the rank of the Assistant Commissioner of Customs informing him on the grounds on which it is proposed to confiscate the goods or imposed a penalty. Though, the other portions of the said section relates to an opportunity of hearing to be given to the person and also making a representation by the importer or the exporter as the case may be. The show cause notice is admittedly issued by the Assistant Commissioner of Customs (Port), Calcutta. This Court does not find that any case is made out which made warrant the invocation the power of judicial r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the said notice is invalid, illegal and beyond the competence of the authority under the relevant statute. 2. Secondly, he submits that the report prepared at the time of export is not reflected in the said show cause notice which amounts to gross suppression of material facts and on this ground the show cause notice is liable to be quashed and declared invalid. 3. Thirdly, he submits that before the order of final assessment is passed the authorities have no power to issue show cause notice as held in the case of A.S. Syndicate (Warehousing) P. Ltd. v. Commissioner of Customs (Port) reported in 2011 (267) E.L.T. 469 (Cal.). 4. Lastly, he submits that Section 5 of sub-section (2) of the Customs Act empowers an offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed and, therefore, the Court should not entertain the writ petition at the show cause notice stage. 9. It is undisputed that the petitioner imported the goods and submitted the bill of entry before the competent authority. It also appears from the record that the sample was drawn for the purpose of verifying whether the goods so imported is in conformity with the goods shown in the bill of entry. It is also undisputed that the customs authority passed an order for re-export and also issued the export cargo stuffing sheet by making a counter signature thereupon. Subsequently, it was found whether the petitioner is entitled to a drawback under Section 74 or have contravened any of the provisions of the Customs Act. The show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supposed to abuse the powers and the process at the time of issuance of the show cause notice provided their conduct clearly discernible from the material disclosed before the Court. Even if the material which according to Mr. Chowdhury was not disclosed in the said show cause notice is considered this Court does not find that the non-disclosure would have made the entire proceeding not sustainable. The show cause notice is basically on denial of the claim of the drawback under Section 74 of the said Act as well as the exportation by making a misdeclaration of the goods which is liable to be confiscated for such offence. 12. So far as the competence of the authority to issue a show cause notice is concerned this Court does not find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined under Section 5(2) of the said Act. He draws emphasis on the expression who is subordinate to him to mean that the officer must be immediately in the lower rank of the Commissioner and not in the line of descent. 14. The reliance is heavily made on the judgment of the Madras High Court in the case of Biomed Hightech Industries Ltd. (supra) for the aforesaid proposition that when the expression is used in singular it has to be interpreted as such. If one look at the issue before the Madras High Court from the very first glimpse, it appears that the question poised before the Court was as to whether the order passed by the Chief Commissioner of Customs as an adjudicating authority is appealable under Section 129A of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, would lie under Section 129-A of the Act. Therefore, the mere fact that under Section 129-A does not mention about the Chief Commissioner of Customs itself is a clear indicative of the fact that the order is passed by him only as an Commissioner (Adjudication) and not as a Chief Commissioner of Customs. 24. It is no doubt true that an appeal is a creation of the statute. Therefore, a right to file an appeal is a statutory right. In other words when there is no appeal that is provided in an enactment then such an appeal if filed cannot be decided by the appellate forum. A Tribunal constituted under the statute will have to perform its functions as defined therein. It cannot assume jurisdiction which is not otherwise available with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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