TaxTMI 
TaxTMI 
2014 (9) TMI 401
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....ce should not ordinarily be entertained unless the show cause notice is issued by an authority not competent to issue the same or it is issued by grossly suppressing the material fact or an abuse of the process. Bearing in mind the aforesaid proposition Mr. Chowdhury, submits that the show cause notice indicates that the adjudication is to be made by the Commissioner of Customs whereas the same is required to be done by the Assistant Commissioner of Customs or the Deputy Commissioner of Customs as provided under Section 74 of the Customs Act, 1962 and, therefore, the said notice is invalid, illegal and beyond the competence of the authority under the relevant statute. 2. Secondly, he submits that the report prepared at the time of e....
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....ection 74 of the said Act, and the imposition of the penalties thereupon and, therefore, the contention of the petitioner that the show cause notice cannot be issued unless the order of final assessment is passed is not sustainable. 7. He further submits that the authority who issued the show cause notice is competent and the show cause notice cannot be rejected on the ground as taken by the petitioner. 8. He also submits that the authorities have disclosed all the facts in the said show cause which shall be determined after receiving the reply and other document so disclosed and, therefore, the Court should not entertain the writ petition at the show cause notice stage. 9. It is undisputed that the petitioner import....
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....g the material facts or the facts which according to the petitioner should not be reflected in the said show cause notice is a matter which should be laid to the authorities to decide. This Court is not oblivion of the proposition of law that if a material facts which are disclosed may not justify the offence alleged in the said show cause notice and may fall on the anvil of the judicial review provided, it is demonstrated without any pale of doubt that the disclosure thereof would have rendered the entire exercise undertaken by the authorities to be futile. 11. The authorities are not supposed to abuse the powers and the process at the time of issuance of the show cause notice provided their conduct clearly discernible from the mat....
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....ustoms (Port), Calcutta. 13. According to Mr. Chowdhury, the show cause notice contains that the hearing is to be made before the Commissioner of Customs who is a higher authority than the Assistant Commissioner of Customs or the Deputy Commissioner of Customs under Section 74 of the said Act. By drawing an inspiration from a judgment rendered by this Court in the case of A.S. Syndicate (Warehousing) P. Ltd. (supra), Mr. Chowdhury would contend that the Assistant Commissioner being an officer not on immediate lower rank, the Commissioner cannot assume jurisdiction in view of the provisions contained under Section 5(2) of the said Act. He draws emphasis on the expression "who is subordinate to him" to mean that the officer must be im....
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....y the Commissioner of the customs as an adjudicating authority. The point arose whether the Chief Commissioner of Customs as an adjudicating authority discharges the powers and the duties of the Commissioner of Customs the appeal would lie to the Appellate Tribunal or not. The answer to the said issue can be aptly found from Paragraphs 23 and 24 of the said judgment which reads thus :- "23. Section 122 of the Act speaks about the adjudication of Confiscations and Penalties. Under the said Section only the Commissioner of Customs has been made as an adjudicating authority. As against the order passed by him an appeal, would lie under Section 129-A of the Act. Therefore, the mere fact that under Section 129-A does not mention about th....