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2017 (4) TMI 836 - BOMBAY HIGH COURT

2017 (4) TMI 836 - BOMBAY HIGH COURT - TMI - Maintainability of SCN - jurisdiction to issue SCN - case of petitioner is that SCN is issued 'ex-fecie' without jurisdiction - Held that: - The SCN which was adjudicated earlier but the adjudication order is challenged in Appeal and the Appeal is still pending. Therefore, it is not as if a SCN duly adjudicated and resulting in a finding or a final conclusion against the petitioner before this Court. - We do not see how in the present facts and ci .....

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order - petition allowed. - Writ Petition No. 1869 of 2016 - Dated:- 10-4-2017 - S. C. Dharmadhikari And Prakash D. Naik, JJ. Mr. Sanjay Kantawala a/w. Mr. Brijesh Pathak, Advocate for the Petitioner Mr. Pradeep S. Jetly, Advocate for the Respondents ORDER P.C. This writ petition under Article 226 of the Constitution of India challenges a show-cause notice dated 26th August, 2015, copy of which is Annexure - A to the petition. 2 The petitioner seeks a declaration that this showcause notice is no .....

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e Customs Act, 1962. 6 A show cause notice dated 14th May, 2013 was issued by the third respondent to the above private limited company. The statement of the petitioner dated 13th December, 2012 recorded during investigation was relied upon. That show-cause notice was adjudicated and an Order-in-Original dated 5th June, 2013 was passed by the respondent. 7 Aggrieved and dissatisfied with this order, the private limited company preferred an Appeal before the Commissioner (Appeals). That came to b .....

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respondent in this petition made an application seeking to rectify the order passed by the Tribunal dated 1st September, 2014. At his request, the matter was remanded not to the adjudicating authority but to the appellate authority. That application for rectification was allowed on 13th February, 2015. The matter stood remanded to the Commissioner (Appeals) and is pending. 9 The petitioner does not also dispute that a similar show-cause notice was issued after conducting investigation by the ve .....

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modified, but, subsequently, what transpires is that a modification application was preferred by M/s. Merill. That modification application is still pending. A personal hearing was fixed on 18th August, 2015, but none knows the fate of this modification application. 10 In the meanwhile, a show-cause notice was issued (impugned show-cause notice dated 26th August, 2015) and that is against the petitioner. Section 112(a) of the Customs Act, 1962 has been relied on insofar as the petitioner is con .....

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itioner's fate is sealed and no impartial adjudication is possible. The petitioner's fate will be decided together with that of the private limited company. In the circumstances, after a gross delay of three years and more this show-cause notice could not have been issued. Secondly, it could not have been issued when at the first instance the revenue did not deem it fit and proper to implicate and involve the petitioner. Lastly, the same set of allegations and the same statements being r .....

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e Court of India and several High Courts, namely, a second show-cause notice is not maintainable on the same allegations and when on earlier show-cause notice, there was an adjudication order already passed. Therefore, once a statutory authority applied its mind and formed an opinion as regards the liability or otherwise of the petitioner, then, on a second thought it cannot issue a show-cause notice. The show-cause notice issued on the same set of allegations according to Shri Kantawala, in the .....

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Upon a reading of petition and its enclosures including the subject show-cause notice, we are unable to agree. 15 The show-cause notices, issued earlier are under Section 124 of the Customs Act, 1962 (for short The Act ). They are dated 14th May, 2013 and issued firstly to M/s. Terrapolis and secondly to M/s. Merill Tradecom. As far as the show-cause notice to M/s. Terrapolis is concerned, in paragraph 3 there was a statement that summons was issued to M/s. Merill Tradecom Pvt. Ltd. A statement .....

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ated and even penalty was to be imposed on the private limited company. 16 An Order-in-Original was passed on this show-cause notice dated 5th June, 2013. The goods were confiscated, redemption was permitted on payment of redemption fine and equal penalty was imposed on the private limited company. 17 Aggrieved and dissatisfied with this order, the matter was carried in Appeal. The office of the Commissioner of Customs (Appeals) was of the opinion that the private limited company was aggrieved a .....

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er was filed on 21st October, 2013. On this application, the Commissioner passed an order and rejected it. After having rejected it, he found that there is no compliance with the interim order. Once the terms and conditions of the interim order were not complied with and the miscellaneous application was dismissed, the Appeal itself did not survive and stood dismissed accordingly. 18 Against such a dismissal, the Tribunal was approached and on 1st September, 2014, the Tribunal expressed an opini .....

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fore, as held by the Hon'ble Apex Court in the case of Bhavya Apparels Pvt. Ltd. Vs. UOI - 2007 (216) ELT 347 (SC) there is no need to make any pre-deposit of dues adjudged. Accordingly, we grant waiver from pre- deposit of dues adjudged against the appellant and remand the matter back to the adjudicating authority for decision on merits. Thus, the appeal is allowed by way of remand. Stay petition is also disposed of. In such circumstances, firstly the matter was remanded to the adjudicating .....

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refore, it is not as if a show-cause notice duly adjudicated and resulting in a finding or a final conclusion against the petitioner before this Court. In the case before the Hon'ble Supreme Court a second show-cause notice on the same set of allegation came to be issued against those very parties in respect of whom a final order is passed. That is why Hon'ble Supreme Court held that the showcause notice issued subsequently is without jurisdiction. Such is not the case before us. The adj .....

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his statement and from that carving out a specific role. An Order-in-Original was passed on this show-cause notice in Merill as well. M/s. Merill moved an Appeal. 21 In that Appeal a stay application was filed by M/s. Merill. On 8th October, 2013 that application was filed and after a detailed hearing on the same, the Commissioner of Customs (Appeals) rejected the same. The entire penalty was to be deposited within 30 days. This order was passed by the Commissioner (Appeals). The modification a .....

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s why the impugned show-cause notice dated 26th August, 2015 not only refers to the statements of the petitioner and one Rajanya Ravasia but alleges that as far as Rupin Bankar is concerned, he is one of the Directors of the firm M/s. Bankar Corporation Ltd. U.K. The wife of Rupin, Meenakshi was also a Director. Thus, Rupin Bankar is the mastermind in this total operation of import of these bogus memory cards and he hatched this conspiracy of import from his own country. These are the prima faci .....

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