TaxTMI 
TaxTMI 
TaxTMI 
2012 (9) TMI 144
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....dgment and order is also under appeal before us. We will discuss the facts of W.P. No. 900 of 1998, as it will cover the facts of the other writ as well. 2. The subject matter of challenge is very short. But these proceedings have continued in this court for a period of about twelve years or so. 3. The writ challenges a show cause notice dated 13th August 1997 issued by an Assistant Commissioner of Customs. In it, against the caption "subject" it was stated "non-realisation of customs duty". In the body of the show cause notice, which is very terse and ambiguous, it is stated that customs duty amount of Rs. 7,08,98,160/- was short levied for a consignment. Perusal of the show cause notice will not reveal any clear meaning. Nor w....
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....at the duty which was sought to be levied was under the proviso to Section 3 of the Central Excise Act, 1944 which is as follows : "Provided that the duties of excise which shall be levied and collected on any [excisable goods which are produced or manufactured, - "(i) * * * * * (ii) by a hundred percent export-oriented undertaking and brought to any other place in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force, on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisabl....
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....visional assessment and no final assessment, there could not be any demand for duty by the show cause notice. We were also shown Directorate of Enforcement v. Deepak Mahajan, reported in 1994 (70) E.L.T. 12 (S.C.) to argue that powers under the Customs Act, 1962 and Central Excise Act, 1944 are to be exercised by officers under those Acts. 12. On the other hand, Mr. N.C. Roychowdhury, learned Senior Counsel for the respondents cited ONGC Ltd. v. Sendhabhai Vastram Patel and Others, reported in (2005) 6 SCC 454. He has also referred to M/s. D. Cawasji and Co., etc., etc., v. State of Mysore & Another, reported in 1978 (2) E.L.T.(J154) (S.C.) = AIR 1975 S.C. 813 and Bombay Municipality v. The Advance Builders and Others, reported in AIR....
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....-12-1998 in favour of the President of India through the Commissioner of Customs." 14. Under Section 12E (renumbered after amendment) of the Central Excise Act, 1944 a central excise officer may exercise the powers and discharge the duties conferred or imposed by this Act on any other central excise officer who is subordinate to him. The appointment of customs officers is dealt with in Section 4 of the Customs Act. Discussion and Findings : 15. In our opinion, the flaw in the show cause notice is fundamental. The subject says "non-realization of customs duty". The body of the show cause notice does not disclose how there is non-realization of customs duty or short payment of it. However, documents have been brought on record in....
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....it is issued. The duty described in the show cause notice is described as customs duty and the show cause notice has been issued by a customs officer. The court should not travel beyond this point and try to unearth the details of the matter so as to justify or unjustify the show cause notice. 18. The learned judge passing the final judgment and order dated 12th May 2003 in the writ application addressed the main issue correctly at page 239 of the paper book when he said "The principal question which falls for a decision is "whether the show cause notice and the final determination made by the customs authority are acts without jurisdiction."" Then His Lordship proceeded to discuss the principle of restitution in detail. Then, the pur....