2017 (9) TMI 139

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d respondents. 2.The petitioner has impugned a show-cause notice issued by the second respondent on the ground that it has been issued with a pre-meditated mind, contrary to the provisions of the Customs Act, 1962 and therefore it is without jurisdiction, invalid and illegal. 3.The case of the petitioner is that the second respondent has arbitrarily impleaded the petitioner as a party to the proceedings without any investigation or enquiry and therefore, continuance of the proceedings under the impugned notice will result in oppression and harassment to the petitioner. It is further submitted that Section 28-AAA of the Customs Act, 1962 cannot be invoked against the petitioner in view of the prohibition available in the said provision....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ting to recovery of duty under Section 28-AAA against a person to whom the instrument was issued shall be without prejudice to the action against the importer under Section 28. The impugned show-cause notice does not clearly state the provision in Section 28 and a reference to Section 28-AAA and in the absence of any allegation made by the exporter in any of the statements recorded by the investigating authorities implicating the petitioner, the question of invoking the said provision of the Act does not arise. Further it is submitted that if the legal position is so, invoking of Section 114-A of the Customs Act, 1962, also would not arise in the light of the plain language of the said provision. Thus, the endeavour of the learned counsel f....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....gence, Mumbai Zonal Unit, Mumbai. The question as to whether there has been any allegation against the petitioner made by the exporters or not and whether the petitioner has acted bonafidely in having purchased scrips from the exporters are all questions of fact which can be agitated only before the adjudicating authority and not before this Court under Article 226 of the Constitution of India. 8.The question as to whether Section 28 or Section 28-AAA would stand attracted, is also not a pure question of law, but involves adjudication into facts. Therefore, at this juncture, this Court does not propose to interfere with the impugned show-cause notice as if it is done, it would be doing so at the very threshold, which is impermissible. Th....