TMI Blog2021 (10) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent No. 2 - Joint Director, DRI, Mumbai, by issuing the show cause notice are invalid, without any authority of law and liable to be set aside and ensuing demands are also liable to be set aside. Availability of alternate remedy to challenge the impugned order - HELD THAT:- The alternative remedy would not operate as a bar, as the proceedings initiated by the respondent No.2 are wholly without jurisdiction. The show-cause notice is totally non est in the eyes of law for absolute want of jurisdiction of the authority which issued it - Petition allowed. - WRIT PETITION NO. 5154 OF 2021 - - - Dated:- 26-10-2021 - DIPANKAR DATTA, CJ M. S. KARNIK, J. Mr. Devashish Trivedi i/b. Agrud Partners for petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the proper officers of the customs department and the petitioners were allowed to import the goods whilst availing exemption benefit as aforesaid. 3. The Directorate of Revenue Intelligence (DRI) vide its letter dated November 2, 2017 (according to the petitioners the DRI is not the proper officer of customs) asked the petitioners to provide details of imports made by them whilst availing benefit of aforesaid exemption notification. Vide letters dated November 22, 2017 and November 27, 2017, the petitioners provided the required details to the DRI. During the course of the investigation, as a gesture of cooperation and abundant caution, the petitioners deposited ₹ 23, 61,625/- towards CVD Exemption availed by them. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Section 111(d) of the said Act; why penalty under Sections 112(a) and/or 112(b), or Section 114A and Section 114AA of the said Act should not be imposed on them. Likewise, the petitioner Nos. 2 and 3 were called upon to show cause as to why penalty under Section 112(a), 112(b) and 114AA of the said Act should not be imposed on them. 5. The petitioners contested the show cause notice before the adjudicating authority, i.e., the respondent No.3. After hearing the petitioners, the respondent No.3 passed the order-in-original dated December 20, 2019 confirming the show cause notice. 6. Being aggrieved by the order-in-original, the petitioners filed three separate appeals before the respondent No.4 under Section 128A of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t writ petition, it would be appropriate to relegate the petitioners to the remedy provided before the Appellate Tribunal under Section 129A of the said Act. 10. Having gone through the decision of the Hon ble Supreme Court in the case of M/s. Canon India Private Limited (supra), we find that the issue raised in the present writ petition is squarely covered by such decision. The show cause notice in the present case is also issued by the respondent No.2 - Joint Director, DRI, Mumbai, who is not a proper officer within the meaning of Section 28(4) read with Section 2 (34) of the said Act. 11. Additionally, a profitable reference also needs to be made to the decision of the Hon ble Supreme Court in the case of Commissioner of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Advocate on behalf of the respondents as regards the availability of alternate remedy to challenge the impugned order under the said Act. In this regard we may straightway refer to the decision of the Hon ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1 wherein Their Lordships held: the alternative remedy would not operate as a bar in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. 14. We also draw support fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate orders. However, law is also well settled that writ petitions challenging show-cause notices ought not to be entertained for the mere asking and as a matter of routine. In an appropriate case, the writ petitioner can invariably be directed to respond to the show-cause notice and raise all points that are highlighted in the writ petition. Whether the show-cause notice is founded on any legal premise is a jurisdictional issue, which can even be urged by the recipient of the notice and such issues can also be adjudicated by the authority issuing the very notice initially, before the aggrieved party could approach the Court. If any authority is required, we may profitably refer to the decision of the Supreme Court reported in (2004) 3 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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