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TMI Blog2023 (6) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 Notice issued under Section 124. They also relied on the case law of Canon India wherein it is held that DRI Officers are not the proper officers to issue Show Cause Notice. Accordingly, the Appellant pleaded before the Adjudicating Authority that the Supplementary Show Cause Notice issued to him is without jurisdiction and should be withdrawn. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 issued. Therefore, it is not a new provision which has been brought on 29/3/2018, but this has been in existence in the normal course and under Section 124 itself the Supplementary Show Cause Notice can be issued. Therefore, it is erroneous to take a stand that for the very first time the Department was empowered to issue the Supplementary Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 issued on 18/2/1017 can be treated as a normal Show Cause Notice ? 11. A careful reading of Section 124 shows that the Second Proviso to Section 124 was brought in by way of Section 94 of the Finance Act with effect from 29/3/2018, which reads as under: xxxxxxxxxxxxxxx 12. Customs (Supplementary Notice Regulations 2019) were notified on 18th June 2019 by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 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 been taken by him in the present proceedings before the High Court, Adjudicating Authority and this Tribunal. 15. Coming to the argument of the Learned AR that this Proviso was only clarificatory in nature and was in existence even before, this can be viewed with an example. Taking an example, a Proviso has been added on 29/3/2018 for Section 28(1) (A) of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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