TMI Blog2003 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was levied at Rs. 1,72,075.75 on 19th June, 1979 and goods were cleared after payment of duty on 5th July, 1979. The third import consisted of 25 packages which was imported on 13th July, 1979 and duty was levied at Rs. 7,90,729.25 and goods were cleared on 3rd December, 1979. On 10th January, 1992 the Respondents directed the Petitioners to pay the less charge amount to the extent of Rs. 4,78,308/- pertaining to the Bills of Entry No. 3549 and 3550, dated 17th April, 1980 and 4807, dated 23rd April, 1980 in terms of demand confirmation order dated 13-4-1998. The Petitioners by letter dated 22nd January, 1992 while expressing surprise, resisted the demand. Further by letter dated 12th March, 1992, it was informed by the Petitioners that they had already paid the appropriate amount of duty pursuant to correct assessment in respect thereof and there was no justification, for the Respondents to issue notice of less charges as was sought to be issued by notice dated 10th January, 1992. The same contentions were reiterated by letter dated 13th March, 1992, 21st March, 1992 and 25th March, 1992. The Respondents by their further letter, dated 29th April, 1992 informed the Petitioners t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the amount of Rs. 4,78,308/- as less charge duty. Lastly, he has submitted that the demand was hopelessly barred by law of limitation as it was made after a period of 12 years from the date of import. 5.The learned Advocate appearing for the Respondents firstly submitted that he is appearing with Mr. Shah and is without any papers to argue the matter. He further requested for adjournment of the matter on the said ground, whereupon he was informed that considering the records of the case, the matter could be adjourned subject to payment of costs. He expressed inability to agree to pay the costs for adjournment and, therefore, the matter was heard. The learned Advocate for the Respondents while controverting the arguments advanced on behalf of the Petitioners submitted that the order dated 13th April, 1988 refers to the fact or issuance of show cause notice and there was no reply to the same by the Petitioners and, therefore, no fault can be found with the said order confirming the less charge demand amount to Rs. 4,78,308/-. He has further submitted that the order is an appealable order and there being an alternative efficacious remedy available to the Petitioners, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent on the face of record or the order passed by such officer on adjudication of the matter. 7.Perusal of the impugned notice dated 13th April, 1988 undoubtedly discloses the fact of issuance of notice as is sought to be contended by the Respondents. However, it nowhere discloses that such notice was actually served upon the Petitioners and that, they had sufficient opportunity of being heard in order to meet the case of the department. 8.Apart from the fact that order dated 13th April, 1988 on the face of it does not disclose the service of show cause notice upon the Petitioners, as rightly submitted by the learned Advocate for the Petitioners. The correspondence by the Petitioners with the adjudicating authorities before approaching this Court also discloses the clear stand taken by the Petitioners that the Petitioners had never received any such show cause notice in the matter and there was no denial of the said claim of the Petitioners either by way of a correspondence on behalf of the department nor there was any counter affidavit filed by the department denying the allegations on the part of the Petitioners that no such show cause notice was served upon the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and the petitioners have no grievance if the stay order continues to operate." With those observations, time was granted to the Counsel for the Respondents to contact the concerned officers to obtain instructions in the matter, from 4th October, 1999 to 16th November, 1999. It appears that the matter thereafter did not appear on board for a long time. However, the fact remains that till this date, there is no change in the situation and the department continues to be adamant in not coming forward to file any affidavit-in-reply or to produce any material on record which can disclose due service or show cause upon the Petitioners. 9.In view of the above facts, the only conclusion that can be drawn is that the department has no material to disclose the service of show cause notice upon the Petitioners. If so, the Petitioners are justified in contending that the order dated 13th April, 1988 was passed without following the mandatory requirement of Section 28(1) of the Customs Act. In fact, on that ground alone, the order of the less charge demand is liable to be quashed and set aside. 10.As rightly submitted by the learned Advocate for the Petitioners, the order dated 13th April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contentions of the learned Advocate for the Respondents that alternate efficacious remedy in the nature of appeal against the impugned order was available, the same does not prohibit the Petitioners from seeking interference of this Court as the impugned order apparently on the face of it discloses violation of the provisions of law under Section 28(1) of the Customs Act regarding service of show cause notice to the Petitioners and denial of opportunity of being heard in the matter and, therefore, the entire exercise of powers under Section 28 of the Customs Act was in total violation of the basic principles of natural justice, apart from violation of the statutory provisions and, therefore, the Petitioners were justified in seeking interference of this Court under Writ jurisdiction and availability of the alternate remedy could not bar the petitioners from approaching this Court in the matter. 14.In the facts and circumstances of the case, therefore, we are left with no alternative than to allow the petition with costs. 15.In the result, the petition succeeds. The impugned order is quashed and set aside. Rule is made absolute in terms of prayer Clause 17(a) with costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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