TMI Blog2016 (11) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed by the Tribunal, the High Court and the Supreme Court. The doctrine of merger has come into play and the show cause notice is not available any more for the petitioner to challenge - It is not the case of the petitioner that they challenged either the impugned show cause notice or the Order-in-Original at the relevant point of time on the ground that the show cause notice was issued by a person not assigned the role of a proper officer. The petitioner had challenged the show cause notice and the order of adjudication on other grounds, which stand rejected up to Supreme Court. Therefore, the principle of finality to litigation would put a seal on the present attempt on the part of the petitioner to reopen the issue all over again. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner filed an appeal before CESTAT, but the same was dismissed on 28-01-2015, for non-compliance with the conditional order for pre-deposit. As against the orders dated 03-09-2014 and 27-10-2014 passed by the CESTAT, refusing to grant a total waiver of pre-deposit condition, but granting only an extension of time for making the deposit, the petitioner filed further appeals before this Court. Those appeals were dismissed by this Court by an order dated 10-03-2016. The petitioner then filed Special Leave Petitions in S.L.P.(Civil) Nos.15781 to 15786 of 2016. But those SLPs were also dismissed. The result is that the show cause notice 30-07-2009 has already worked itself out and the Order-in-Original passed by the Commissioner confirming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to note at this juncture that the 2011 Amendment itself was necessitated by a decision of the Supreme Court in Commissioner of Customs v. Sayed Ali (2011 (3) SCC 537). It was held in the said decision that unless a person has been specifically assigned the functions of a proper officer, he could not invoke the powers conferred upon proper officers. It was this decision of the Supreme Court that led to the amendment to Section 28, by Finance Act, 2011. On the question as to whether Section 28 (11) inserted by the Validation Act, 2011 was constitutionally valid or not, the Delhi High Court held as follows: Conclusion on the effect and validity of Section 28 (11) 70.1 The net result of the above discussion is that the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very initiation of proceedings is without jurisdiction, the consequent events would also be without jurisdiction. Once the foundation goes, the entire edifice has to come down. 9. We have carefully considered the above submissions. 10. At the outset, we are of the considered view that the writ petition is not maintainable. The show cause notice dated 30-07- 2009, which is under challenge in the present writ petition, is no longer in force. The show cause notice has already culminated in a Order of adjudication and the order of adjudication has also been confirmed by the Tribunal, the High Court and the Supreme Court. The doctrine of merger has come into play and the show cause notice is not available any more for the petitioner to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is that there cannot be more than one decree. 13. The issue can be looked at from another aspect also. Today, the effect of our allowing the writ petition and setting aside the show cause notice would be to set at naught, the order of adjudication, the judgment of CESTAT, the judgment of this Court and the order of Supreme Court. What cannot be achieved by the petitioner directly cannot be achieved by them indirectly. 14. The contention that all proceedings founded upon a show cause notice that was inherently lacking in jurisdiction, would be non-est, null and void, is perhaps right as a simple statement of a proposition of law. But it is not without exceptions. If this theory of nullity and voidity is accepted, all proceedings ini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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