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2021 (8) TMI 178 - HC - CustomsJurisdiction to Issue Show Cause Notice (SCN) - Proper officer - Valuation of imported goods - flavours and fragrances - rejection of transaction value - re-determination of assessable value - principles of res-judicata - Objection to Jurisdiction raised at a belated stage - Alternate Remedy - Suppression of Material Fact - Applicability of judgment in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT]. Objection to Jurisdiction raised at a belated stage - HELD THAT:- It is to be noticed that the point of jurisdiction which goes to the root of the matter could be raised at any stage of the proceedings, which is a settled position of law. In fact, absence of jurisdiction to issue a show-cause notice if raised even after an assessment order is passed, such objection regarding jurisdiction of the authority if found in the affirmative would vitiate the whole proceedings including the assessment orders or orders passed on an appeal and other orders of the superior authorities. Accordingly, the contention regarding jurisdiction as raised by the second respondent is liable to be rejected. Alternate Remedy - HELD THAT:- The Apex Court in the case of M/s.Canon India Private Limited has unequivocally dealt with the point of jurisdiction of the Officers of DRI in the context of proper officer and in light of the unequivocal findings made there is no necessity for any re-adjudication of such an issue and accordingly, the question of relegating the party to avail of the statutory remedy would not arise. Res Judicata - HELD THAT:- The dispute on hand in the present case however is one that relates to valuation and not as regards to the tariff applicable and that comes out clearly from the contents of the show-cause notice dated 07.01.2008 and this position regarding distinct nature of dispute of the show-cause notice relating to the judgment of the Supreme Court in the case of GIAVUDAN INDIAN PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, BANGALORE [2009 (12) TMI 786 - CESTAT BANGALORE] as well as the present dispute is clear even on a bare perusal of the material on record and does not involve any complicated factual enquiry necessitating relegation of the parties to the remedy of appeal. Accordingly, the question of res judicata would not be a bar to the adjudication of the present proceedings nor does it necessitate the relegating authority to avail of the statutory remedy of appeal. Suppression of Material Fact - HELD THAT:- The question of appropriateness of valuation is still to be adjudicated and the matter is now reopened by setting aside the impugned order reserving liberty to issue fresh notice. Accordingly, any finding regarding misleading declaration made would be impermissible as it would amount to prejudging the issue on hand. The other grounds made out by the respondent No.2 as regards the petitioner not revealing the other litigations pending with the Department is liable to be rejected, in light of the discussion made while dealing with the issue of res judicata. Applicability of judgment in M/s.Canon India Private Limited - HELD THAT:- In the present case, applying the law laid down in the case of M/s.Canon India Private Limited clearly, the proceedings that have been initiated by issuance of a show cause notice dated 07.01.2008 by the Additional Director General, DRI is also liable to be set aside in light of the law laid down by the Apex Court. While judgment of High Court of Madras in the case of COMMISSIONER OF CUSTOMS (AIR) VERSUS M/S. PREMIER TOURS & TRAVELS (CHENNAI) PVT LTD. CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH, CHENNAI [2021 (2) TMI 659 - MADRAS HIGH COURT] where identical contentions were raised and the consideration of such aspect has been relegated to be decided in the appeal, however this Court does not find any reason to take the same view, in light of the clear findings in the case of M/s.Canon India Private Limited which does not leave any scope for further adjudication and the law laid down by the Apex Court ought to enure to the benefit of the petitioners. The Order-in-original in both the writ petitions are set aside while holding specifically that the show cause notice at Annexure-B dated 07.01.2008 is one that is not issued by 'the proper officer' - petition allowed.
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