9911796707
TMI Blog2023 (6) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was carried out, there was no specific provision to issue the Supplementary Show Cause Notice. There is nothing to indicate that this Proviso has been brought into effect with a retrospective date. Therefore, a proper and harmonious reading of Section 124, after the addition of the Second Proviso will clarify that only from 29/03/2018, the Department was empowered to issue a Supplementary Show Cause Notice in respect of the Show Cause Notice already issued by them. If the Supplementary Show Cause Notice was issued prior to 29.3.2018 and no amendment was carried out on 29.3.2018 by way of insertion of Second Proviso, the appellant would not have been in a position to challenge the issuing of the Supplementary Show Cause Notice, since the Section 124 was silent, neither allowing nor disallowing the issuing of Supplementary Show Cause Notice. But insertion of the Second Proviso to Section 124 on 29.3.2018, without any clause towards its being retrospective in nature, the clarification has been now brought in only with effect from 29.3.2018 that Supplementary Show Cause Notice can be issued. Therefore, while the appellant could not have challenged the issue of Supplementary Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andeep Kumar Dikshit is one of the 4 Noticees who have been issued the Supplementary Show Cause Notice. The issue of the Supplementary Show Cause Notice on 18/5/2017 was challenged by the Appellant Shree Sandeep Kumar Dikshit before the Hon ble High Court of Calcutta. The Appellant challenged the Supplementary Show Cause Notice on the ground that the same is without jurisdiction and the law does not permit issuance of such supplementary Show Cause Notice. The Hon ble High Court of Calcutta vide their order dated 2nd March 2022 directed the Appellant to approach the Adjudicating Authority with all his submissions with regard to lack of jurisdiction of the Show Cause Notice issuing Authority to issue Supplementary Show Cause Notice. The Adjudicating Authority took up the proceedings on the issue as to whether the Department could have issued Supplementary Show Cause Notice to the Noticee on 18/5/2017 or not. The Appellant submitted before the Adjudicating Authority that the second proviso to Section 124 of the Customs Act, 1962 was inserted with effect from 29/3/2018 vide Finance Act, 2018. Prior to this date, there was no authority to issue any Supplementary Notice to the Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued on 26/ 8/2016 for 6 noticees. On account of further investigations taken up by the Department, they have come to know that some more noticees were also involved in the alleged contraventions. Accordingly, Supplementary Show Cause Notice was issued on 18/5/2017 to 4 more noticees including the present Appellant. He draws the attention to Para 8.5 of the OIO, wherein the Commissioner has given a finding that the present Appellant, Shri Sandeep Kumar Dikshit has already taken part in the Adjudication Proceedings which are underway as a consequence of the said Supplementary Show Cause Notice dated 18/05/2017 and had also appeared for Personal Hearing, Cross Examination, etc. Therefore, it is clear that he was also aware that there is no infirmity in issue of the Supplementary Show Cause Notice to him. 5. He submits that the second Proviso added on 29/3/2018 does not bring any specific or new provision to Section 124. Supplementary Show Cause Notices were being issued earlier also. This inserted Proviso only tries to regulate the issue of Supplementary Show Cause Notice by giving a time frame for the proviso and is only to clarify the way the Supplementary Notice is to be issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice prior to amendment. Therefore, now the Adjudicating Authority is trying to prove that it is not a Supplementary Show Cause Notice, but a normal Show Cause Notice, which is not the case here. Accordingly, he submits that the Appeal is required to be allowed. 8. The learned AR makes his submissions to the effect that : (a) The Dept always had the power to issue the Supplementary Show Cause Notices. The amendment to Section 124, has not brought in any new provision. Even if it is taken as a new provision, it should be given retrospective effect. (b) Secondly, the Adjudicating authority has correctly concluded that the issue of Supplementary Show Cause Notice to the appellant, is not Supplementary in the strict sense, but actually an independent Show Cause Notice. On these grounds he submits that the Appeal is liable to be dismissed. 9. Heard both sides and perused the documents. 10. The points to be decided in this particular case are: (a) Whether the Department could have issued the Supplementary Show Cause Notice to the Appellant on 18/5/2017 after having issued the normal Show Cause Notice on 26/8/2016? (b) Whether the Supplementary Show Caused Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that only from 29/3/2018 the Supplementary Notice could be issued. Therefore, I hold that the Supplementary Show Cause Notice issued on 8/5/2017 is not legally sustainable. As per the Second Proviso to Section 124, this power has been granted to the Department only with effect from 29/3/2018. 14. To view this issue in another angle, if the Supplementary Show Cause Notice was issued prior to 29.3.2018 and no amendment was carried out on 29.3.2018 by way of insertion of Second Proviso, the appellant would not have been in a position to challenge the issuing of the Supplementary Show Cause Notice, since the Section 124 was silent, neither allowing nor disallowing the issuing of Supplementary Show Cause Notice. But insertion of the Second Proviso to Section 124 on 29.3.2018, without any clause towards its being retrospective in nature, the clarification has been now brought in only with effect from 29.3.2018 that Supplementary Show Cause Notice can be issued. Therefore, while the appellant could not have challenged the issue of Supplementary Show Cause Notice prior to 29.3.2018, only this amendment carried out to Section 124 would give him the right to do so, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
