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TMI Blog2019 (7) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... t recovered - Another show-cause notice was issued to the petitioner to show-cause to respondent No.2 as to why DBK amount to ₹ 26,08,366/- should not be allowed under Rule 16 of the Customs, Central Excise and Service Tax Drawback Rules, 1995 along with penalty and interest. This Court is not dealing with the merits of the case, as the petitioner does have an alternative remedy - In the present case, there is a remedy of appeal and the petitioner on some pretext or the other is delaying the matter. He could very well raised all grounds by filing an appeal. Recovery, which is running in crores, is pending against the petitioner. The show-cause notice can never said to be a vague show-cause notice or a show-cause notice issued by an authority not competent to issue the showcause notice. In the present case, the petitioner was served with the proper show-cause notice, he was granted an opportunity of hearing and detailed and exhaustive order has been passed by the competent authority - it is certainly true that alternative remedy is not an absolute bar, but the fact remains that the petitioner is having equal efficacious alternative remedy. The order has been passed after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f showcause notice, has preferred a writ petition before this Court i.e. W.P. No.5233/2009 and a ground was raised that the show-cause notice is without jurisdiction and it is illegal. 07. Another ground was raised that the respondent No.4, as a Custom Officer under the Customs Act, does not have power to sit as an appellate authority over the certificates (AR 4) issued by the Superintendent, Central Excise and under the Customs Act, 1962, there is no provision to challenge the validity of the certificates issued by the Superintendent, Central Excise or any Custom Officers and in those circumstances, it was pleaded that respondent No.4 / Additional Director General, Ahmedabad had no authority under the law to issue show-cause notice made answerable to respondent No.3 / Commissioner (Customs) Exports, Raigarh (Maharashtra). 08. In the writ petition another ground was raised that respondent No.4 / Additional Director General, Ahmedabad, as a Custom Officer, had no authority to issue show-cause notice under Rule 16 demanding duty drawback because it was beyond his jurisdiction. 09. The writ petition i.e. W.P. No.5233/2009 (Neo Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 13. It has been stated that the show-cause notice was issued in the year 2004 and till date, the department has not been able to recover the amount from the petitioner, as there is an interim order granted by this Court in the present case. 14. It has further been stated that the respondent No.3 is the proper authority having jurisdiction under the law to issue such an order against the petitioner / Company and their officials. Rule 16 of the Customs Central Excise Duties and Service Tax Drawback Rules, 1995 prescribes that where an amount of drawback and interest, if any, has been paid erroneously or the amount so paid is in the excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case may be and where the claimant fails to repay the amount it shall be recovered in the manner as laid down in the sub-section (1) of Section 142 of the Customs Act, 1962. Accordingly, the respondent No.3 is the proper officer for adjudicating the case. 15. It has also been stated that two show-cause notices were issued by the Additional Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein, which shows the intention of the petitioner to delay the process of adjudication. In the aforesaid writ petition, the petitioner has willfully misstated the facts before this Court that they have filed the reply to the show-cause notice timely and the respondents have not communicated even after five years. It has been further that the show-cause notice was issued on 30.01.2004 and the reply was submitted by the petitioner on 29.12.2006 (i.e. after a lapse of two years and 11 months). Thereafter, respondent No.2 has fixed the personal hearing in the year 2009 but the petitioner has wrongly stated in the aforesaid petition that they have not received any communication for five years and thus, it should be deemed that the notice was dropped. This reflects that the petitioner has willfully misstated the facts before this Court and committed contempt of the Court. 20. The respondents have further stated that a huge amount (₹ 6,40,92,368/-) of DBK proposed to be disallowed was the subject matter of the show-cause notice answerable to respondent No.3 (the Additional Commissioner, Customs Central Excise, Indore) and a small amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of ₹ 5,72,174/- under the proviso to Section 11-A along with penalty and interest be not recovered. 24. Another show-cause notice was issued to the petitioner to show-cause to respondent No.2 as to why DBK amount to ₹ 26,08,366/- should not be allowed under Rule 16 of the Customs, Central Excise and Service Tax Drawback Rules, 1995 along with penalty and interest. 25. The notification dated 07.07.2019 issued in exercise of the power conferred by sub-section (1) of the Section 4 of the Customs Act, 1952 reads as under:- Appointment of Customs Officers Supersession of Notification No.58/92-Cus. In exercise of the powers conferred by subsection (1) of Section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.58/92-Customs (N.T.), dated 31st July 1992, the Central Government hereby appoints, - (a) the officers specified below to be commissioner of Customs within their respective jurisdictions namely :- (1) (i) Director General of Revenue Intelligence, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Additional Director General 3. Additional Director 4. Joint Director 5. Deputy Director or Assistant Director 6. Senior Intelligence Officer 7. Intelligence Officer 1. Chief Commissioner 2. Commissioner 3.Additional Commissioner 4. Joint Commissioner 5. Deputy Commissioner or Assistant Commissioner 6. Superintendent 7. Inspector 2 Officers of Directorate General (Vigilance), namely:- 1. Director General (Vigilance) 2. Additional Director General 3.Additional Commissioner (Vigilance) 4. Joint Commissioner (Vigilance) 5. Deputy Commissioner of Assistant Commissioner (Vigilance) 1. Chief Commissioner 2. Commissioner 3. Additional Commissioner 4. Joint Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Assistant Director Research and Junior Analyst 6. Statistical Investigator (Senior Grade) 7. Statistical Investigator (Ordinary Grade) 1. Commissioner 2. Joint Commissioner 3. Assistant Commissioner or Deputy Commissioner 4. Assistant Commissioner or Deputy Commissioner 5. Superintendent 6. Inspector 7. Inspector 7 Officers of Customs in Export Processing Zones, Free Trade Zones or Special Economic Zones namely;- 1. Commissioner 2. Additional Commissioner 3. Joint Commissioner 4. Assistant Commissioner or Deputy Commissioner 5. Appraiser 6. Examiner 7. Preventive Officer 1. Commissioner 2. Additional Commissioner 3. Joint Commissioner 4. Assistant Commissioner or Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of such appeal.] (2) Every appeal under this section, shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. In light of the aforesaid fact as it is an appealable order, a liberty is granted to prefer an appeal, in accordance with law. 28. In another case i.e. W.P. No.267/2017 (Sanjeet Kumar Sharma v/s Directorate of Revenue Intelligence Mumbai) again, as the order therein was appealable order, the petition was disposed of with a liberty to prefer an appeal. 29. This Court again in W.P. No.266/2017 (Sashi Ranjan Kumar v/s Directorate of Revenue Intelligence) decided on 08.05.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f N.C.T. Of Delhi Another v/s Sanjeev alias Bittu reported in AIR 2005 Supreme Court 2080 and his contention is that judicial review can be done on the ground of illegality, irrationality and procedural impropriety. 34. The aforesaid case is relating to externment, the present case relates to payment of duty under the Excise Act. The show-cause notice has been issued by the competent authority. The order has been passed by the authority competent to do so, and therefore, the judgment relied upon by learned counsel for the petitioner is of no help to the petitioner. 35. Learned counsel for the petitioner has also placed reliance upon a judgment delivered in the case of Commissioner of Income Tax Others v/s Chhabil Dass Agrawal reported in (2014) 1 SCC 603 . Heavy reliance has been place upon paragraph-15 and 16 and the same reads as under:- 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2010) 4 SCC 785 . 37. Learned counsel for the petitioner by relying upon the aforesaid judgment, has argued before this Court that principles of natural justice and fair play have not been followed in the present case. 38. This Court has carefully gone the record. In the present case, the petitioner was served with the proper show-cause notice, he was granted an opportunity of hearing and detailed and exhaustive order has been passed by the competent authority, and therefore, the judgment relied upon by learned counsel for the petitioner is again of no help to the petitioner. 39. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Harbanslal Sahnia Another v/s Indian Oil Corporation Limited Others reported in AIR 2003 SCC 2120 and his contention is that alternative remedy is a rule of discretion and not one of compulsion. 40. This Court has again gone through the aforesaid judgment and in the aforesaid judgment, remedy of arbitration was available and taking into account the judgment delivered in the case of Whirlpool Corporation v/s Registrar of Trade Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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