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TMI Blog2022 (9) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;BLE MS. JUSTICE TARA VITASTA GANJU Petitioner Through: Ms Anjali J. Manish, Adv. Respondents Through: Mr Harpreet Singh, Sr. Standing Counsel with Ms Suhani Mathur, Mr Arunesh Sharma and Mr Jatin Gaur, Advs. for R-1. O R D E R [Physical Hearing/Hybrid Hearing (as per request)] CM Appl.40489/2022 1. This is an application moved on behalf of the petitioner pursuant to the detailed hearing held by this Court on 24.08.2022. 2. Issue notice. 2.1. Mr Harpreet Singh accepts notice on behalf of the non-applicants/respondents. 3. Via the application, the applicant/petitioner not only seeks to assail the show-cause notice dated 08.07.2022; but also, assertions have been made to the effect that the amendments brought about in the Customs Act, 1962 by virtue of Finance Act 2022, violate the provisions the Constitution [i.e., Articles 14 and 19(1)(g) of the Constitution]. 4. The amendments that the applicant/petitioner seeks are adverted to in paragraphs 6, 7, 8 and 9 of the application. 4.1 In the application, averments are also made to the effect that certain prayers need to be substituted. The reference to the substituted prayers is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the parties concerns classification. 2.1. The petitioner appears to have imported actuators and aerosol valves meant for perfumes and toilets sprays 2.2. The imported goods have been classified by the petitioner under various sub-heads of chapter 84. The classification head according to the petitioner is Customs Tariff Heading (CTH) 84248990. 2.3. Moreover, as per the respondents/revenue, the subject goods should have been classified under CTH 9616. Concededly, if the subject goods are classified under this heading, they would attract a higher rate of customs duty. 3. According to the respondents/revenue, the period in issue spans between 12.07.2017 and 28.06.2022. 4. Ms Anjali J. Manish, who appears on behalf of petitioner, says that the premises of the petitioner were searched on 15.01.2019. 4.1. It is also Ms Manish s submission that various summons were issued to the petitioner between January and May 2019. These summons, according to Manish were issued by Directorate of Revenue Intelligence (DRI). Ms Manish goes on to state that the last time around a summon was issued in 2019 was 16.05.2019. 4.2. Furthermore, Ms Manish says that, after a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of the goods. 5.9. The application before CAAR, we are told, was filed on 16.03.2020. We are told by Ms Manish that a communication dated 14.08.2020 was addressed by CAAR to the Commissionerate Customs (Preventive), Jodhpur, whereby its comments in the matter were sought. 5.10. It is not in dispute that on 05.10.2021, CAAR ruled in favour of the petitioner insofar as the issue concerning the classification was concerned. To put it pithily, CAAR ruled that the goods imported by the petitioner fell under CTH 84248990. 6. Given the aforesaid, the petitioner was aggrieved by the fact that fresh summons had been served upon it in March 2022 i.e., summons dated 02.03.2022 and 09.03.2022 7. Notice in the instant writ petition was issued on 23.03.2022. Since then, counter-affidavit has been filed on behalf of the respondents/revenue. 8. We are informed by Mr Harpreet Singh, who appears on behalf of the respondents/revenue, that during the pendency of the above-captioned writ petition, a show cause notice date 08.07.2022 has been issued to the petitioner. 8.1. A hard copy of the said show cause notice has been placed before us in the course of the hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued and they had replied in the negative. 9.6 Let us for argument sake consider the course of events that would have been followed by this Authority had the applicant made a fuller disclosure regarding the on-going investigation by DRI, New Delhi (noting that the applicant states that they were not aware of the continuation of such investigation). Noting the indisputable facts that the previous clearances had been allowed finally, i.e. without recourse to provisional assessment by the jurisdictional customs officers and no pre-consultation notice or show cause notice had been issued by any of the competent authority, this Authority would not have invoked the proviso (a) to section 28-1 (2) of the Customs Act, 1962. In a recent ruling in the application of M/s HQ Lamps Manufacturing Co. Pvt Ltd., this Authority has opined that an application may be considered pending before any officer only if it is pending before an officer in formal manner before an officer who is competent to answer the said question in terms of specific powers vested with the officer under the Customs Act. An illustrative list of such situations would include cases wherein a Show Cause Notice has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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