TMI Blog2021 (2) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... hority of the concerned respondent to issue the SCN which is one of the grounds urged in the petition. Respondents are hereby directed to take a decision pursuant to the SCN dated 24.01.2020 in accordance with law, Rules, Regulations and Government Policies applicable to the facts of the case and also keeping in mind the evidence on record, as early as possible and practicable. The issues raised herein with respect to the SCN being time barred, applicability of Section 28 (1) or Section 28AAA as well as the jurisdiction of the concerned authority are also left open to be decided by the concerned respondent - petition disposed off. - W.P.(C) 842/2021 & CM APPL.2146/2021 (exemption) - - - Dated:- 21-1-2021 - HON'BLE THE CHIEF JUSTICE AND HON'BLE MS. JUSTICE JYOTI SINGH Petitioner: Mr.Prem Rajan with Mr.Himanshu Kaushik, Advocates Respondents: Mr.Arunesh Sharma, Advocate for Mr.Harpreet Singh, SSC, Ms.Akanksha Mehra, Advocate for Mr.Aditya Singh, Standing Counsel JUDGMENT: D. N. PATEL, CHIEF JUSTICE (ORAL) CM APPL.2146/2021 (exemption) Allowed, subject to just exceptions. The application is disposed of. W.P.(C) 842/2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nee country was deliberately mis-declared by them for the purpose of availing undue benefit under SFMS. It was gathered that Shri Shanti Swaroop Sharma, who looked after all the activities of New Era had adopted this modus operandi mainly in respect of exports to Armenia, Azerbaijan, Kazakhstan, Sudan and Ethiopia etc. However, the goods had never travelled to the destination shown on the export documents. (emphasis supplied) (c) It is further alleged that during the course of investigation, it was found that in TR-1 and TR-2 copies of shipping bills, port of discharge and country of destination were found manually changed and forwarded to Additional Commissioner of Customs, Exports and filed. The port of discharge had been manually changed to Jebel Ali from Bandar Abbas, Awassa and Sudan and country of destination had been manually changed to Dubai and the same were endorsed with the customs stamp. It is further alleged that the amendments were wilfully done and the export goods did not correspond with the material particulars with regard to the port of discharge and country of destination. On enquiry with the freight forwarder and the custom broker, it was rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Looking at the allegations in the SCN and the details of the investigations carried out as well as the provisions of Section 28AAA of the Customs Act, 1962, we are of the prima facie view that the SCN is not time barred. 5. The other contention raised by the counsel for the petitioner is that under Section 28 (1) (a) of the Customs Act, 1962 where any duty has not been levied or not paid or has been short levied or short paid or erroneously refunded for any reason other than reasons of collusion or any wilful mis-statement or suppression of facts then within two years of the relevant date a SCN is required to be served and under Section 28 (4) the time limit for demand is five years in case of collusion etc. The present impugned notice has proposed to demand and recover the duty relatable to 32 duty credit authorisations issued by DGST under Section 28AAA of the Customs Act, 1962. A reading of the provisions, according to counsel for the Petitioner shows that the limitation to demand and recover the duty ended on 11.09.2018 or 22.03.2019 since the exports were made between 08.03.2013 and 12.09.2013 and FMS Authorisation was issued between 19.06.2013 to 23.04.2014 and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants that the High Court has committed error in entertaining the writ petition under Article 226 of the Constitution of India at the stage of show-cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show-cause notice, but it is settled by a number of decisions of this Court, where writ petitions can be entertained at the show-cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. The High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. 31. The judgment of this Court in Union of India v. Guwahati Carbon Ltd.; (2012) 11 SCC 651 relied on by the learned Senior Counsel for the appellants also supports their case. In the aforesaid judgment, arising out of the Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t should first raise all the objections before the Authority who have issued the show-cause notice and in case any adverse order is passed against the appellant, then liberty has been granted to approach the High Court ... ... in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice. (emphasis supplied) 9. Since the matter is at the stage of SCN, which in our prima facie opinion is not time barred, especially looking to Section 28 AAA of the Customs Act, 1962 and the facts of this case. We are not inclined to entertain the petition at this stage. It is open to the petitioner to file a reply in response to the SCN and a decision shall be taken thereafter by the respondents, in accordance with law and taking into account the stand of the petitioner. It is also open to the petitioner to raise the grounds taken in the present petition in reply to the SCN including the objection to the jurisdiction, power and authority of the concerned respondent to issue the SCN which is one of the grounds urged in the petition. 10. Respondents are hereby directed to take a decision pursuant to the SCN dated 24.01.2020 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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