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TMI Blog2005 (4) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... namely M/s. G.R. Magnets Ltd. In order to get benefit, different set of shipping bills were filed with the Customs Department. The export goods were shipped and the foreign buyer has taken delivery of the same and Foreign Exchange relating to it has been received, through proper channel. 2. On or about 24th May, 1999 the respondent No. 3 raided an office of the petitioners, one file was seized, investigation started and summons under Section 108 of the Customs Act were issued. No action was taken pursuant to the above investigation by issuing a show cause notice under Section 124(a) of the Customs Act. Within a maximum period of one year as no action was taken there could not and cannot be any basis for the aforesaid raid. 3. The present show cause notice dated 20th February, 2003 was received by the petitioners from the respondent No. 2 purportedly under Sections 9(4), 16 and 11 of the Foreign Trade (Development and Regulation) Act, 1992, on the wrong premises that it has been reported by the respondent No. 3 that the export item i.e. the TDM and DCM were actually procured from one M/s. Elin Electronics Ltd. Gaziabad in the name of Prakash Electronics Ltd. Kolkata and subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur and holding valid registration certificate from jurisdictional Central Excise Authorities and the same were cleared under A.R.-4 procedure. From the records available it will be proved, without any doubt, that the said M/s. G.K. Magnet India had manufactured and they had applied for registration to jurisdictional Central Excise authorities and was granted the same in October, 1998. This fact has been admitted in paragraph 18 by the DRI authorities in notice dated 10th December, 2003 for which separate proceeding has been initiated. 6. He contends further that notice is the result of total non-application of mind. It is not open for the authorities under the Customs Act and Act of 1992 to act as appellate authority on the decision taken by the Central Excise Authorities. There are different statutes viz. Customs Act, Central Excise Salt Act and Foreign Trade (Development and Regulation) Act. Three statutes are independent each other and each statute operates in separate field and has its separate procedure, entitlement and manner of action to be taken. Admittedly, till today no action has been taken by Central Excise Authorities with regard to issuance of AR-4. AR-4 procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been put to use and so there is no loss of revenue. 9. Mr. Kalyan Bandopadhyaya learned Advocate appearing for the Revenue submits that the challenge as against show cause notice is devoid of any substance, as it is not alleged that the officer concerned has no jurisdiction under the statute. When a statutory officer has taken action, bona fide, the same shall not be interfered with by this Court, unless upon plain reading of the same there appears any illegality and infirmity. 10. He contends further that as far as the delay is concerned the same does not vitiate the show cause notice because there has been a fraudulent misrepresentation as to the manufacturing of the goods in question. The department had to take a longer time to unearth the fraud committed by the petitioner. He submits that in the declaration it was mentioned that a particular person has been the manufacturer while it was found that the manufacturer of the goods in question are some other person and therefrom the goods were seized from the said concern who is the supplier. 11. He further submits that the goods were abnormally over-priced in order to get inflated amount of credit of the imported materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , though having power, cannot proceed nor take action, then it is a question of jurisdiction. Mr. Bandopadhyay has taken the plea of alternative remedy as the aforesaid Act provides for appeal, so also it has been advised in the impugned final order by the respondent concerned. As far as provision for alternative remedy is concerned I am of the opinion it is not legal bar rather it is the discretion of the Court whether this writ petition will be entertained or not notwithstanding appellate provisions being available. Mr. Rawal has drawn attention of this Court to the various decisions of the Supreme Court agitating his point that alternative remedy in this case is of no assistance as the petitioners have complained about the infringement of their fundamental right and also the question of jurisdiction. I find his contention is justified and right in this case as the allegations of infringement of fundamental right as well illegal exercise of jurisdiction are made. In the case of Whirlpool Corporation v. Registrar of Trade Marks Mumbai Ors. (1998) 8 SCC 1 the Supreme Court while dealing with a case relating to the decision of Registrar of Trade Mark relying on the various earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be judicially reviewed by this Court. 15. While coming to the merit of the case I think that the relevant portion of the text of the impugned notice needs to be stated hereunder to appreciate the case in an appropriate manner. "...And whereas it has been intimated by DRI, Delhi Zonal Unit for the exported items i.e. tape-deck mechanism (TDM) and DC Micro motors (DCMM) were actually procured from M/s. Elin Electronics Ltd., Uttar Pradesh in the name of M/s. Prakash Electronic System Ltd. Calcutta who subsequently transferred/sold these finished products to M/s. G.R. Magnets Ltd., misdeclaring them as components/assembles. And whereas M/s. G.R. Magnet Ltd., Calcutta misrepresented that these TDM and DCMM were manufactured at their factory at Adityapur, Jamshedpur and were removed for export on behalf of the agency M/s. R.A. International, Calcutta to Dubai/London at a highly inflated price for claiming excessive and ineligible amount of DEPB credits though they have no capacity to manufacture the same. And whereas it was also revealed although the goods sent to Dubai/London the goods were actually delivered to Singapore and extent of over-valuation took place ranging from 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export or fraudulent manufacturing. 19. Mr. Rawal has rightly contended that once shipping bill is endorsed and further the other documents relating to receipt of export proceeds are proved then this respondent has no jurisdiction to negate the aforesaid documents issued by the Customs authority as well as the Central Excise authorities. I find substance in this argument of Mr. Rawal that allegation of non-manufacturing of the export materials by the M/s. G.R. Magent Ltd. are not to be examined and/or enquired into by the respondent authorities once the documents relating to AR-4 as per the Central Excise Act are produced, it is conclusive proof of manufacturing. If these allegations are allowed to be enquired into by this authority then it amounts to illegal attempt of overruling of the decision of the Central Excise authorities for this authority allowed clearance of the goods after being manufactured after an elaborate procedure. The authority concerned examined in details as to the factum of manufacture and then cleared the goods. This exercise necessarily involves decision making process and further decision of the authorities under the different statute. If the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity under the 1992 Act. Therefore, the decision of the Division Bench of this Court has got binding effect upon respondents herein. 23. Under those circumstances I am of the view that going by the statements narrated in the show cause notice the respondent authorities have no jurisdiction to issue such notice so long the Customs authorities or the Central Excise authorities do not reopen or for that matter any challenge is made against the decision in accordance with law. 24. Therefore, I hold that the impugned first show cause notice is without jurisdiction. Naturally the final orders passed in connection with and consequent thereon are also nullity and both these show cause notice and the orders passed thereon are set aside. 25. As far as the subsequent show cause notice is concerned I think this gives rise to separate cause of action and this cannot be dealt with by this Court and a challenge shall lie before the appropriate forum. Therefore, I grant liberty to the petitioners to approach the appropriate forum. I have gone through the impugned final order and I think Mr. Rawal is right in saying that the respondent authorities have no jurisdiction to pass any order for pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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