TMI Blog2006 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28th December 2005 passed by the Commissioner of Customs (Import) is impugned in the present writ petition. Vide order-in-original, the Commissioner has confirmed demand of differential duty of Rs. 2,99,91,236/- along with interest. The Commissioner ordered appropriation of Rs. 1.75 crores deposited by the petitioner on 6th July, 2002 and the recovery of the remaining amount. The Commissioner also ordered confiscation of the goods but since those were cleared provisionally, the order of redemption on payment of fine of Rs. 1,00,00,000/- in lieu of confiscation was made. The Commissioner further imposed penalty of Rs. 2,99,91,236/-. 5.That the order-in-original dated 28th December, 2005 is appellable under Section 129 is not in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice, dated 1-11-04, had been issued to it, and that, as no reply had been submitted by it thereto, it was requested to submit the same within 15 days. The Petitioner had, for its part, never received, prior to this date, any Show Cause Notice dated 1-11-04". 7. In reply-affidavit, there is no specific denial to the aforesaid averment. The senior counsel for the Revenue submitted that the show-cause notice dated 1st November, 2004 was sent to the petitioner by Speed Post. There is nothing on record to substantiate it. In the circumstances, it has to be assumed that the show-cause notice dated 1st November, 2004 was not received by the petitioner and it was only when the petitioner received the letter dated 14th October, 2005 that they c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to reply to the show-cause notice. The petitioner also sent its representative on 23rd November, 2005 who was given copies of the relied upon documents. On 29th November, 2005, the petitioner again requested for return of unrelied documents for their defence to the show-cause notice. The petitioner claims to have reiterated the request for return of unrelied documents vide letters dated 30th November, 2005, 9th December, 2005 and 16th December, 2005. It was only on 16th December, 2005 that the petitioner was informed that the unrelied documents can be collected on any working day with prior appointment. The petitioner was also informed vide letter dated 16th December, 2005 that the personal hearing has been fixed on 26th Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents were supplied to the petitioner only on 23rd November, 2005. The unrelied documents were not returned to the petitioner despite request number of times. It was only on 16th December, 2005 that the petitioner was informed that the unrelied documents can be collected on any working day with prior appointment and that personal hearing was fixed on 26th December, 2005. The unrelied documents were collected by the petitioner on 21st December, 2005 and sought for one month's time to reply to the show cause notice and for postponing the hearing of the matter. However, the matter was decided and order-in-original was passed on 28th December, 2005. 14.Vide circular dated 13th June, 1988 issued by the Department of Revenue, Ministry of Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has been able to make out a case for invocation of extra-ordinary jurisdiction despite the availability of statutory remedy of appeal under Section 129 of the Customs Act, 1962. Incidentally, we may notice here that out of the total demand amounting to Rs. 2,99,91,236/- confirmed by the Commissioner in the impugned order, the petitioner had already deposited a substantial sum of Rs. 1.75 crores way back on 6th July, 2002. This is not a case where entire demand of differential duty is outstanding against the petitioner. 16.The result is that we allow the writ petition and set aside the order-in-original dated 28th December, 2005 passed by the Commissioner of Customs (Import). The petitioner shall now file reply to the show-cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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