TMI Blog2010 (4) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... directions issued by the Supreme Court, the remedy lies before the Supreme Court and not before this Court. - 7538 of 2009 - - - Dated:- 19-4-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY: M/s. Trivedi Gupta and Uday Joshi, Advocate, for the Petitioner. None, for the Respondent. [Judgment per: H.N. Devani, J. (Oral)]. - This petition under Articles 226 and 227 of the Constitution of India challenges show cause notice dated 4th May 2009 issued by respondent No.2 -Commissioner of Central Excise Customs, Surat-II, raising a demand of customs duty under section 28(1) of the Customs Act, 1962 (the Act) and interest under section 28AB of the Act; proposing penalty under section 112 and confiscation of imported capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as section 28(1) of the Act, makes it absolutely clear that the time limit for issuance of show cause notice has been clearly stipulated therein and that, there no authority and/or forum is vested with the power to condone any delay caused in issuance of show cause notice under the said provision. 4. It is contended that as limitation has been incorporated in the statute itself, the impugned show cause notice which has been issued beyond the period of limitation prescribed in the statute is barred by limitation. It is urged that the impugned show cause notice, which has been issued pursuant to the order of the Supreme Court, is not sustainable as the said order being contrary to the provisions of section 28 of the Act and section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice and consequential adjudication, the impugned communications cannot be permitted to hold the field and accordingly, quashed and set aside the said communications. 7. The Union of India challenged the aforesaid decision before the Supreme Court by way of a leave petition being Special Leave Petition No.4808 of 2009, which came to be disposed of vide the order dated 28th April 2009, whereby the Supreme Court directed Commissioner of Customs, Range C.B.W., Division-I, to give show cause notice to the assessee stipulating the grounds on which he seeks to demand the duty. The show cause notice was to be given within two weeks from that date and reply thereto was to be filed within four weeks by the assessee. It was made clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aise the plea of limitation no objection has been raised on behalf of the petitioner. The Commissioner is duty bound to abide by the aforesaid directions issued by the Supreme Court. Hence, no fault can be found in the action of the respondent No.2 in issuing the show cause notice in compliance with the directions of the Supreme Court. 11. As regards the contention that the order passed by the Supreme Court is per incuriam inasmuch as the same is passed without considering the provisions of section 28(1) of the Act and section 11A of the Central Excise Act, as held by the Apex Court in A.R.Antulay v. R.S.Nayak, (1988) 2 SCC 602, an irregular order of a court of unlimited jurisdiction can be set aside by it on application being made to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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