Second show cause notice valid despite pending first notice when withdrawn later and within limitation period

The AP HC dismissed a review petition challenging the validity of a second show cause notice issued while the first SCN was pending. The court held that the withdrawal of the first SCN occurred after issuance of the second SCN, which was for a differential amount rather than identical amount. The second SCN was within the 5-year limitation period under Section 28(4) of the Act. The court found no error apparent on the face of the record and noted that questions of fact regarding suppression cannot be determined in writ jurisdiction. The petitioner retained the right to respond to the SCN and raise jurisdictional objections before the adjudicating authority.

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Issues Involved:
1. Jurisdiction of the first show cause notice.
2. Validity and authority of the second show cause notice.
3. Compliance with the limitation period under Section 28 of the Customs Act, 1962.
4. Applicability of the extended period of limitation under Section 28(4) due to alleged suppression or mis-declaration.
5. Withdrawal of the first show cause notice and its implications.
6. Review of the court's observations and conclusions.

Issue-wise Detailed Analysis:

1. Jurisdiction of the First Show Cause Notice:
The petitioner argued that the first show cause notice dated 24.03.2022 was without jurisdiction as it was issued by the Deputy Commissioner of Customs, who was not competent to issue the notice. The petitioner contended that the determination was not made by the proper officer within the period of one year, rendering the first show cause notice concluded by 23.03.2023.

2. Validity and Authority of the Second Show Cause Notice:
The second show cause notice dated 10.04.2023 was issued by the Principal Commissioner of Customs, Air Cargo Complex, Chennai-VII, Chennai, after the first show cause notice was withdrawn on 17.05.2023. The respondents argued that the second show cause notice was issued by the competent authority and included additional bills, thus there was no illegality in its issuance.

3. Compliance with the Limitation Period Under Section 28 of the Customs Act, 1962:
The petitioner submitted that the goods were imported between 14.04.2018 and 04.09.2019 and cleared after verification under Section 17 of the Act. The limitation period for serving a notice under Section 28(1) ended on 03.09.2021, and the first show cause notice was issued on 24.03.2022 under Section 28(4), alleging suppression of facts. The petitioner argued that the extended period of limitation under Section 28(4) was wrongly invoked.

4. Applicability of the Extended Period of Limitation Under Section 28(4) Due to Alleged Suppression or Mis-declaration:
The petitioner contended that the extended period of limitation under Section 28(4) is subject to strict compliance with Section 28(9). The petitioner argued that there was no evidence of extension granted by a superior officer, and the first show cause notice was deemed concluded by 23.03.2023. The petitioner relied on the case of Hyderabad Polymers (P) Ltd. v. CCE to argue that once the earlier show cause notice on a similar issue was dropped, suppression could not be claimed.

5. Withdrawal of the First Show Cause Notice and Its Implications:
The petitioner argued that the withdrawal of the first show cause notice on 17.05.2023 had the effect of dropping the proceedings, and the extended period of limitation under Section 28(4) would not be available. The petitioner contended that the second show cause notice issued on 10.04.2023 was without authority as it was issued after the first notice was deemed concluded.

6. Review of the Court's Observations and Conclusions:
The petitioner sought a review of the court's judgment, arguing that the court proceeded on presumptions and assumptions. The petitioner contended that the court's observation in para-12 of the judgment was contrary to the pleadings in the writ petition. The petitioner argued that the court erroneously assumed that the period for determination of duty under Section 28(8) could be extended if not already extended. The petitioner relied on the case of Yashwant Sinha v. CBI to argue that a misconception by the court about a concession by the counsel furnishes a ground for review.

Court's Analysis and Conclusion:
The court held that there was no error apparent on the face of the record and that the review petition was an attempt to reargue the case on merits, which is not permissible. The court observed that the period for determination of duty under Section 28(9) is extendable, and there was no specific averment that the extension was not granted. The court found that the petitioner did not raise certain arguments in the writ petition, and new grounds cannot be raised in a review petition. The court dismissed the review petition, allowing the petitioner to file a response to the show cause notice before the authority concerned.

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