2015 (1) TMI 1261

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..... w-cause notice dated July 11, 2011, a copy whereof appears as Annexure P-8 to the petition at page 60 thereof, is set aside as being without jurisdiction. As a consequence, all steps taken pursuant to the show cause notice, including the order-in-original dated February 26, 2014, are also set aside. - Decided in favor of petitioners.
Sanjib Banerjee, J. Shri Durga Prasad Dutta and Souvik Sen, for the Petitioner. Shri S.B. Sarat and K.K. Maiti, for the Respondent. ORDER The short ground canvassed by the petitioners is that the show cause notice issued and recovery proceedings initiated by the Customs authorities after a period of more than eight years from the completion of the export transaction by the first petitioner are hopelessly .....

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..... the order-in-original and the petitioners ought to have exhausted their statutory remedies before invoking this extraordinary jurisdiction. 7. Since the very authority to issue the show cause notice and continue further proceedings pursuant thereto has been questioned, the existence of an alternative remedy will not stand in the way of this Court, in exercise of its powers under Article 226 of the Constitution, considering such challenge and quashing the proceedings if the same are found to be without jurisdiction. 8. Section 28(4) of the said Act mandates, inter alia, that where any duty has not been levied or short-levied or erroneously refunded by reason of collusion or wilful misstatement or suppression of facts, the notice .....

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..... btained. 12. There are only two scenarios possible : that the first petitioner had duly exported the goods and had complied with the conditions of the advance licence; or, the first petitioner had acted in derogation of the conditions appended to the licence and, as such, was liable to refund the duty exemption obtained. In the second case, it was mandatory for the department to issue a notice to the petitioner within five years of the date by which the export obligation ought to have been completed or within five years of the actual export of the last consignment. 13. Since it is evident that no notice was issued by the department to the first petitioner within five years of February, 2005, the steps taken by the respondent aut .....

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