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2016 (11) TMI 557 - ANDHRA PRADESH HIGH COURT

2016 (11) TMI 557 - ANDHRA PRADESH HIGH COURT - TMI - Challenge to the show cause notice (SCN) - Classification of imported goods - blank C.Ds - classified under Ch.Sh.No.85238020 or under Ch.Sh.No.85234090 - whether the benefit of exemption claimed under Notification No.6/2016-CE, dated 01-03-2016 should be denied? - Held that: - The show cause notice dated 30-07- 2009, which is under challenge in the present writ petition, is no longer in force.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 .....

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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. - Petition dismissed. - Writ Petition No. 25594 of 2016 - Dated:- 26-10-2016 - V. Ramasubramanian And Smt. Anis, JJ. For the Petitioner : Sri P. Vikram For the Respondent : Sri K .....

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ior counsel representing the learned standing counsel for the respondent. 3. The petitioner was issued with a show cause notice dated 30-07-2009, calling upon them to show cause as to why the blank C.Ds imported by them under three bills of entry dated 07-01-2009, classifying them under Ch.Sh.No.85238020 should not be classified under Ch.Sh.No.85234090 and the benefit of exemption claimed under Notification No.6/2016-CE, dated 01-03-2016 should not be denied and for various consequential actions .....

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TAT, 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 passe .....

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hat if any officer other than the proper officer had undertaken these tasks, they would not be valid. Therefore, taking advantage of the said decision of the Division Bench of the Delhi High Court, the petitioner has now come up with the present writ petition, challenging the very show cause notice issued by the Additional Director General, on the short ground that he was not a proper officer. 6. It is seen from para-1 of the decision of the Division Bench of the Delhi High Court in Mangali Impe .....

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r officers. 7. It is relevant 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 questio .....

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fact, there was no proper assigning of the functions of reassessment or assessment in favour of such officers who issued such SCNs since they were not proper officers for the purposes of Section 2(34) of the Act and further because Explanation 2 to Section 28 as presently enacted makes it explicit that such non-levy, short-levy or erroneous refund prior to 8th April 2011 would continue to be governed only by Section 28 as it stood prior to that date and not the newly re-cast Section 28 of the A .....

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Additional Director General were vitiated and are liable to be set aside, despite the fact that the show cause notice has already culminated in an Order-in-Original and the same has also been confirmed up to the Supreme Court. It is argued that once the 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 ou .....

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lenge. 11. Heavily reliance is placed by Mr. P. Vikram, learned counsel for the petitioner on two things viz., 1) the judgment of the Delhi High Court in Mangali Impex Ltd.,(supra); and 2) the judgment of a Division Bench of the Punjab & Haryana High Court in Rajinder Arora and others v. Union of India and others 2016-TIOL-1257. In Mangali Impex Ltd., (supra), the Division Bench of the Delhi High Court set aside even the show cause notices, despite the fact that the show cause notices had al .....

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Impex Ltd., the show cause notice, the adjudication order as well as the consequential recovery proceedings were non-est and void abinitio. 12. But unfortunately, the Delhi High Court as well as the Punjab & Haryana High Court have not considered the issue from the point of view of merger. It is needless to point out that the doctrine of merger is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The underlying principle behind the doctrin .....

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