TMI Blog2017 (7) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.9238 to 9240 of 2016 - - - Dated:- 18-4-2017 - S. Manikumar And D. Krishnakumar, JJ. For Appellants : Mr. M. Santhanaraman, For Respondents : Mr. Hari Radhakrishnan JUDGMENT ( Judgment of the Court was delivered by D. Krishnakumar, J ) As the issue involved in both the above Writ Appeals is identical in nature, they are heard together and taken up for disposal. 2. According to the petitioner in W.P.No.36889 of 2015, he was the Director of M/s.Vee Vee Clearing and Forwarding Pvt.Ltd., Customs Broker, who is engaged in the business of customs clearance and doing business mainly at Chennai. In the course of business, as a clearing agent, one M/s.MAXX Power Tools Pvt.Ltd., Mumbai, had availed their services for clearance of power tools through the Port of Chennai. The officers of the respondent had conducted certain investigation regarding the imports of power tools from China and as part of the said investigation, had examined the consignment imported by M/s. MAXX Power Tools Pvt.Ltd., vide Bill of Entry No.4925207 dated 14.10.2011 filed with Chennai Customs. The said Bill of Entry was filed by another Customs broker, M/s. Pluto Shipping Logistics Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation, the officers of the respondent also conducted investigation on the imports made by M/s. MAXX Power Tools Pvt.Ltd., where the Bill of Entry was filed through another Customs Broker, M/s. Vee Vee Clearing and Forwarding Pvt.Ltd.,. In total two Bills of Entry were filed using the customs broker licence of M/s. Pluto Shipping Consultancy Pvt.Ltd.,. The petitioner/respondent was summoned for questioning under sec.108 of the Customs Act, on 22.4.2015 and his detailed statement was recorded. After a month, he received the impugned show cause notice dated 8.5.2015, issued by the respondent, calling upon the petitioner to show cause as to why penalty should not be imposed on him, in terms of sec.112 and 114 AA of the Customs Act, 1962, for allegedly colluding with the importer in mis-declaring the description and value of the goods imported by M/s. MAXX Power Tools Pvt.Ltd.,. According to the petitioner, as the show cause notice has prejudged and pre-determined his guilt, he preferred Writ Petition under Article 226 of the Constitution of India. 4. Both the aforesaid Writ Petitions were heard at length by a Writ Court of this High Court and were allowed by a common order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority to prove their innocence and the contents of the show cause notice would not in any way prejudice the case of the respondents/writ petitioners. In any event, the impugned order of the learned Judge cannot be sustained in law and the same is liable to be set aside. 7. On the contrary, the learned counsel for the respondents would submit that the impugned show cause notice dated 8.5.2015 is vitiated and void for the reasons that it has prejudged the guilt of the respondent at the stage of show cause notice itself. It is settled law that the purpose of show cause notice is to give an opportunity to the person to put-forth his defence and establish his innocence. Where the guilt of the noticee is pre-judged, then no effective opportunity can be given to the noticee. Further, he would submit that the Hon'ble Supreme Court of India, in the case of Oryx Fisheries Private Limited versus Union of India reported in 2011 (266) E.L.T. 422 (S.C.), has held as follows:- 31. It is of course true that the show cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h took exception even to use of the words it is clear in the show cause notice. 10. In the light of the aforesaid reasons and decisions, the learned counsel for the respondents submitted that the impugned show cause notice was liable to be set aside and accordingly, the Writ Court has set aside the impugned notice and there is no infirmity or illegality in the order of the Writ Court and hence, the Writ Appeal is liable to be dismissed. 11. Heard the learned standing counsel for the appellants and the learned counsel for the respondent and perused the materialis on record. 12. It is the case of the respondents that the show cause notices issued by the first appellant against them lacks bona fide and the guilt of the respondents is prejudged and pre-determined at the stage of notice itself. Therefore, seeking to quash the impugned show cause notice, the respondents filed Writ Petition Nos.36889 and 36890 of 2015, respectively, before this Court. The learned counsel for the respondents referred to Paragraphs 24 and 31 of the impugned show cause notice before the Writ Court to contend that the guilt of the writ petitioners/respondents herein were pre-judged and pre-determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigating authority/first appellant is confined to investigating the case and submitting a report to the adjudicating authority and the first appellant cannot adjudicate the case as contemplated under the Act. As such, the investigating authority and the adjudicating authority are two different persons. Therefore, the decision relied on by the Writ Court in the case of Oryx Fisheries Private Limited versus Union of India reported in 2011 (266) E.L.T. 422 (S.C.), wherein the investigating authority and the adjudicating authority was one and the same person, is not applicable to the facts of the present case. Therefore, the contention of the respondents herein that the investigating authority has pre-determined and pre-judged cannot be accepted. Hence, the grounds raised by the writ petitioners/respondents are liable to be rejected. Further, the respondents have challenged the show cause notice and whether the same can be examined in the Writ Petitions has to be considered by this Court in the light of the following decision. 15. Moreover, a Writ against a show cause notice is not maintainable. (I) In Union of India v. Kunisetty Satyanarayana, reported in AIR 2007 SC 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court.'' 16. The aforesaid decisions were followed by a Division Bench of Madurai Bench of this High Court in Writ Appeal No.342 of 2016 dated 8.3.2016 in M.Sankara Subramanian Versus the Director General of Police and others, wherein one of us was a party to the decision (viz., S.MANIKUMAR, J.). 17. In the light of the above discussions and decisions, we set aside the order passed by the Writ court and the impugned show cause notice issued by the first appellant is sustained with liberty to the respondents to submit their reply to the show cause notice dated 8.5.2015 within a period of six weeks from the date of receipt of a copy of this order and on receipt of the said reply, the first appellant is directed to consider the same on merits and in accordance with law. Accordingly, the Writ Appeals are allowed. No order as to costs. Connected Miscellaneous Petitions are closed. - - TaxTMI - TMITax - Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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