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2016 DIGILAW 92 (CAL)

Sibco Overseas Pvt. Ltd. v. Union of India

2016-01-28

SANJIB BANERJEE

body2016
JUDGMENT : Several interesting issues have been sought to be raised, particularly as to the propriety of the Central Board of Excise and Customs to issue a notification to deliberately negate the effect of a considered judgment of the Supreme Court. The petitioner company brought in certain import consignments prior to 2013. The goods were permitted to be brought in upon assessment of the duty at the ports of entry by the concerned Commissioner of Customs (Import). Apparently, the Directorate of Revenue Intelligence subsequently discovered that the goods imported by the petitioners may have been of Chinese origin but were routed into the country from Malyasia to avoid the anti-dumping duty that the import of Chinese goods would have attracted. On such perception, a notice was issued by the DRI to the petitioners on June 3, 2015 under Sections 124 and 28 of the Customs Act, 1962. However, such show-cause notice required the petitioner company to furnish its reply to some other authority or office within 30 days of the receipt thereof. The petitioners challenged the jurisdiction of the DRI to issue the notice and, indeed, several matters pertaining to the very issuance thereof. The relevant petition, WP 24692(W) of 2015, was disposed of by an order of October 6, 2015. The order recorded that the main thrust of the previous petition was that the notice dated June 3, 2015 was without jurisdiction as it had not been issued by a proper officer. On such aspect of the matter, the Revenue relied on copies of notifications dated March 7, 2002 and July 6, 2011 by which certain officers in the DRI were indicated by the Central Board of Excise and Customs as proper officers for the purpose of Section 28 of the said Act. On such aspect of the matter, the Revenue relied on copies of notifications dated March 7, 2002 and July 6, 2011 by which certain officers in the DRI were indicated by the Central Board of Excise and Customs as proper officers for the purpose of Section 28 of the said Act. The court repelled the jurisdictional challenge on the basis of the notification of July 6, 2011 and directed as follows : “In such circumstances, the writ petition is disposed of with liberty to the petitioners to approach the concerned authority by filing a reply to the Show-Cause–cum-Demand notice dated June 3, 2015 within a period of six weeks from date and participate in the adjudication proceedings in accordance with law.” It is now the contention of the petitioners that at the time that the order of October 6, 2015 was passed on the previous petition, a circular of December 11, 2014 had not been brought to the notice of the court. It is submitted that paragraph 4 of the circular of December 11, 2014 is of some significance in the matter. It must be appreciated that this is a subsequent writ petition which has been filed and not an application in the nature of review or modification of any previous order. It must also be noticed that it is not the petitioners’ case that they were not aware of the circular of December 11, 2014 when the previous order was passed or, despite exercise of due diligence, did not have access to such circular at the relevant point of time. The petitioners suggest that in view of the judgment of the Supreme Court reported at 2011(3) SCC 537 (Commissioner of Customs v. Sayed Ali) and the said circular of December11, 2014, the reply to the show-cause notice must necessarily be filed in the office or department which issued the same and not to any other or office indicated at paragraph 21 of the notice. The petitioners buttress such submission on the basis on the expression “concerned authority” used in the operative paragraph of the order dated October 6, 2015. The petitioners buttress such submission on the basis on the expression “concerned authority” used in the operative paragraph of the order dated October 6, 2015. The petitioners suggest that since the issue as to who was the appropriate authority to receive the reply to the show cause notice was not decided by the order of October 6, 2015, the present petition has been filed for such purpose and such question may be appropriately dealt with herein. Unfortunately for the petitioners, it is no longer open to the petitioners to challenge any aspect of the impugned show-cause notice of June 3, 2015, at least prior to issuing a reply thereto. The matters sought to be urged herein were or ought to have urged in course of the previous petition and to the extent they were not urged or not covered by the order dated October 6, 2015 cannot be reopened at this stage. Since this petition was aggressively pursued notwithstanding the obvious overwhelming obstacle facing the petitioners, WP 1048(W) of 2016 is dismissed with costs assessed at Rs.1,00,000/-. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.