9911796707
TMI Blog2017 (7) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... templated under Section 28 has arisen. The duty is yet to be finally assessed for the petitioner to be said to be guilty of not paying the duty or paying short levy of the duty payable. The question of refund does not arise at all. Therefore, a failure contemplated under Section 28 of the Act of 1962 not happening, the authorities should not have invoked Section 124 of the Act of 1962. Section 124 of the Act of 1962 allows issuance of show-cause notice before confiscation of goods. The authorities could not have invoked Section 28 read with Section 124 of the Act of 1962 in the facts of the present case. The overwhelming inference, therefore, is that the impugned show-cause notice was issued without jurisdiction. The final order emanating out of the show-cause notice consequently suffers from the same defect - petition allowed - decided in favor of petitioner. X X X X Extracts X X X X X X X X Extracts X X X X ..... ne die. Subsequently, the authorities have passed the impugned order dated February 27, 2015 without affording the petitioner any further opportunity of hearing. The matter was adjourned sine die on April 17, 2014 in view of the then prevailing situation in law. He submits that, a batch of writ petitions had received consideration by this Hon'ble Court and that, the issues raised in such batch of writ petitions are similar to that involved in the present writ petition. Such writ petitioners were disposed of by a judgment and order of the Division Bench dated November 10, 2014. He submits that, the authorities had proceeded against numerous importers of such material. According to him, all such proceedings were disposed of by the adjudicating authority by holding that, unless a final assessment under Section 18(2) of the Act of 1962 was made, Section 28 of the Act of 1962 cannot be invoked. He relies upon orders of the adjudicating authority passed in those proceedings in support of such contention. Learned Advocate for the petitioner next submits that, the petitioner being similarly situated and circumstanced as that of the other importers, the department is not entitled to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Advocate for the petitioner relies upon a judgment and order dated April 12, 2017 passed in WP 8120 (w) of 2017 (M/s. Wright Minerals Pvt. Ltd. & Anr. Vs. Directorate of Revenue Intelligence, Government of India & Ors.) and submits that, on a similar point the Court had allowed the writ petition. The DRI and the Customs Authorities are represented. Learned Advocate for the Customs Authorities strenuously submits that, the fact scenario in the present case is different to those prevailing in the other proceedings. He submits that, there was a final assessment so far as the petitioner is concerned. Learned Advocate for the DRI submits that, in the event the Court is pleased to set aside the impugned order, DRI should be permitted to take steps in accordance with law. I have considered the rival contentions of the parties and the materials made available on record. The petitioner had suffered a show-cause-cum-demand notice issued under Section 28 read with Section 124 of the Customs Act, 1962 dated July 19, 2013. The petitioner did not reply thereto. The adjudication proceedings under Section 28 read with Section 124 of the Act of 1962 was taken up for consideration on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. Section 28 of the Act of 1962 allows the Customs Authorities to recover duties not levied or short levied or erroneously refunded. In the present case, none of the situations contemplated under Section 28 has arisen. The duty is yet to be finally assessed for the petitioner to be said to be guilty of not paying the duty or paying short levy of the duty payable. The question of refund does not arise at all. Therefore, a failure contemplated under Section 28 of the Act of 1962 not happening, the authorities should not have invoked Section 124 of the Act of 1962. Section 124 of the Act of 1962 allows issuance of show-cause notice before confiscation of goods. A writ petition assailing an order passed by a statutory authority is maintainable notwithstanding the existence of a statutory alternative remedy of appeal. The existence of a statutory alternative remedy of appeal is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution of India. Notwithstanding the availability of a statutory alternative remedy, a writ petition is maintainable in the event the impugned order is demonstrated to be without jurisdiction, is vitiated by fraud ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
