TMI Blog1985 (8) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... nd respondent is the appellate authority under the Customs Act. The 3rd respondent is the Union of India. The 4th respondent is the Corporation and a subsidiary company of State Trading Corporation. Respondents 5, 6 and 7 were the partners of the old firm. 3. The 1st petitioner along with respondents Nos. 5, 6, 7 and 3 other partners constituted a partnership firm in the name and style of M/s. Takandas H. Kataria at Bombay and were carrying on the business. This firm (hereinafter referred to 'old firm') was dissolved on December 31, 1974. On dissolution of the old firm the new firm came into existence which consisted of the 1st petitioner and 3 other partners. It is common ground that in the old firm there were in all seven partners and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice. The Assistant Collector by its order dated January 4, 1974 negatived all the contentions raised by the clearing agents and levied the additional duty. M/s. Bablani and Co. preferred appeal on behalf of the State Trading Corporation but, however, the appellate authority vide its order dated January 24, 1979, dismissed the appeal. During the pendency of these proceedings as stated earlier the old partnership came to be dissolved on December 31, 1974 and new partnership came into existence on January 1, 1975. 6. In May, 1977 an advertisement was issued through respondent No. 4 inviting offers by way offenders for purchase of cellulose nitrate sheets lying with them. The 2nd petitioner (new firm) who was interested in purchasin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no writ petition can be entertained at their instance. Consistent with this opinion the learned single Judge dismissed the Misc. Petition. 9. Shri Gursahani, the learned Counsel appearing in support of this appeal raised several contentions. According to the learned Counsel the show cause notice issued by the Assistant Collector of Customs was clearly illegal and without jurisdiction inasmuch as the said notice was not in conformity with the provisions of Section 28(1) of the Customs Act, 1962. The claim made by the customs authority was clearly time barred since the demand was made after the expiry of six months. He further submitted that proviso to Section 28 of the Act has no application because the show cause notice does not fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods and therefore the show cause notice issued under Section 28 of the Customs Act was perfectly legal and cannot be said to be time barred as alleged by the petitioners. He also submitted that M/s. Bablani and Co. who were the clearing agents representing the old firm (of which appellant No. 2 was a partner ) as well as the Stale Trading Corporation did file reply to the show cause notice and suffered the adverse orders in the customs proceedings, the petitioners-appellants now cannot successfully lay any challenge to the show cause notice. He therefore submitted that the appeal as against these respondents should be dismissed. 11. Shri Thakkar, the learned Advocate appearing for the 4th respondent urged that the State Trading Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of this amount. The Prothonotary and Senior Master is hereby directed to permit the 4th respondent to withdraw the said amount along with interest earned thereon, upon 4th respondent furnishing unconditional bank guarantee of any nationalised bank to the satisfaction of the Prothonotary and Senior Master. The 4th respondent through their counsel undertakes to this Court to refund the said amount to the petitioners with 10 p.c.p.a. interest thereon in the event the petitioners succeed in the Miscellaneous Petition. 14. In the result, the appeal is allowed. The impugned order is quashed and set aside. Rule to issue in terms of prayer clauses (a) to (d) returnable on 9th December, 1985. Rule to come up for hearing in normal course. Shri Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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