TMI Blog2017 (4) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... J. 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 not maintainable for the simple reason that it is issued 'ex-fecie' without jurisdiction. 3 Firstly, we notice certain undisputed facts. 4 The Petitioner does not dispute that he is a Indian citizen and businessman of repute. He was associated in the capacity of Director of one Terrapolis Commercz Pvt. Ltd. 5 The first respondent is the Union of India whereas the second and third respondents are the Commissioner and Additional Commissioner of Customs respectively exercising powers under the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation against the above companies. That statement according to the petitioner was recorded on 13th December, 2012. 11 Now, at this belated stage when the substantive showcause notices were adjudicated, Orders-in-Original and in Appeal were passed, implicating and involving the petitioner is impermissible in law. Now, the petitioner'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 relied upon would mean that the petitioner was deliberately not chosen for issuance of a show-cause notice, but, now the Revenue proceeds against him belatedly. There are no valid grounds or reasons which can be found from reading of the show-cause notice itself so as to proceed against the petitioner. 12 Mr. Kantawala, learned counsel appearing for the petitioner r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 and dissatisfied with an Order-in-Original and that was in the aforesaid terms. Therefore, unless a pre-deposit is made of the amounts stipulated in Commissioner (Appeals) order, the Appeal cannot be heard. The stay application was heard on 3rd October, 2013, directing the Appellants to deposit the penalty imposed by the lower authority and to submit proof. That period ended on 1st November, 2013. Surprisingly, instead of making payment, a Miscellaneous Application for modification of interim order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner inasmuch as in the show-cause notice there are allegations as to how the petitioner facilitated the importation. The show-cause notice refers to the summons issued to the petitioner, 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 application was filed seeking a modification of the order dated 8th October, 2013. This modification application is dated 21st October, 2013 but, till date no final orders are passed. 22 It is in the teeth of all this that on 26th August, 2015, the authorities realized that for the sake of completeness and since both are private limited companies, but the associates of the same having not specifically named, for technical grounds, the show-cause notice and the adjudication should not fail. That is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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