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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 ..... d unless the show cause notice is issued by an authority not competent to issue the same or it is issued by grossly suppressing the material fact or an abuse of the process. Bearing in mind the aforesaid proposition Mr. Chowdhury, submits that the show cause notice indicates that the adjudication is to be made by the Commissioner of Customs whereas the same is required to be done by the Assistant Commissioner of Customs or the Deputy Commissioner of Customs as provided under Section 74 of the Customs Act, 1962 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalties thereupon and, therefore, the contention of the petitioner that the show cause notice cannot be issued unless the order of final assessment is passed is not sustainable. 7. He further submits that the authority who issued the show cause notice is competent and the show cause notice cannot be rejected on the ground as taken by the petitioner. 8. He also submits that the authorities have disclosed all the facts in the said show cause which shall be determined after receiving the reply and other document so 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner should not be reflected in the said show cause notice is a matter which should be laid to the authorities to decide. This Court is not oblivion of the proposition of law that if a material facts which are disclosed may not justify the offence alleged in the said show cause notice and may fall on the anvil of the judicial review provided, it is demonstrated without any pale of doubt that the disclosure thereof would have rendered the entire exercise undertaken by the authorities to be futile. 11. The authorities are not 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the show cause notice contains that the hearing is to be made before the Commissioner of Customs who is a higher authority than the Assistant Commissioner of Customs or the Deputy Commissioner of Customs under Section 74 of the said Act. By drawing an inspiration from a judgment rendered by this Court in the case of A.S. Syndicate (Warehousing) P. Ltd. (supra), Mr. Chowdhury would contend that the Assistant Commissioner being an officer not on immediate lower rank, the Commissioner cannot assume jurisdiction in view of the provisions contained 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e point arose whether the Chief Commissioner of Customs as an adjudicating authority discharges the powers and the duties of the Commissioner of Customs the appeal would lie to the Appellate Tribunal or not. The answer to the said issue can be aptly found from Paragraphs 23 and 24 of the said judgment which reads thus :- "23. Section 122 of the Act speaks about the adjudication of Confiscations and Penalties. Under the said Section only the Commissioner of Customs has been made as an adjudicating authority. As against the order passed by him an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pedantic meaning to an expression would not only frustrate the legislative intent but it would render the provisions otiose and unworkable. 17. In totality this Court does not find that any case is made out which made warrant the invocation the power of judicial review at the show cause stage. The petitioner can take all the plea available to him in the reply to a said show cause notice before the authority and it is expected that the authority would consider the same and shall decide the proceedings in accordance with law. The petitioner is permitted to file reply to the said show cause notice within four weeks from date. 18. It is once again made clear that this judgment shall not be construed to have any impact on the meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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