TaxTMI 
TaxTMI 
2019 (6) TMI 909
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.... 4. Short facts shorn off unnecessary particulars and details or in other words, short facts which are imperative for appreciating this order, are as follows: a) writ petitioner is engaged in the business of export of garments to various countries; b) In the course of business, writ petitioner had filed 26 shipping bills in the period between June 2009 and December 2009 (on eight occasions) and a drawback claim of Rs. 65,08,939/- through Chennai port was made. This drawback was sanctioned by the Customs Department. c) Sometime in August 2012, on investigation carried out by 'Directorate of Revenue Intelligence' ('DRI' for brevity), the Customs Department states that they realized that the proceeds of exports in respect of aforesaid 26 shipping bills are under a cloud as according to DRI the consignments that were sought to be exported had never arrived at Inland Container Depot (ICD) or Container Freight Stations (CFS). d) It is the further case of Revenue that during the course of investigation at the instance of officers of DRI, writ petitioner had paid a sum of Rs. 49,00,000/- on various dates. To be noted, this Rs. 49,00,000....
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....t, come close to Section 28 of said Act. Learned counsel pointed out that under Section 28, two separate time frames, one being two years and another being 5 years have been stipulated albeit for recovery of duties not levied, not paid, short levied, short paid or erroneously refunded. Learned counsel also submitted that in cases where collusion or any wilful misstatement or suppression of facts are alleged, the time frame is 5 years from the date. The expression 'relevant date' has also been explained in Explanation No.1 to Section 28 of said Act. 9. Learned counsel thereafter pressed into service a judgment of a Hon'ble Division Bench of Gujarat High Court in Pratibha Syntex Ltd., Vs. Union of India reported in 2013 (287) E.L.T.290 (Guj.) and submitted that Gujarat High Court while dealing with Rule 16 of said Rules held that when limitation is not prescribed, power with regard to such provisions has to be exercised within reasonable time. 10. Learned counsel drew the attention of this Court to Paragraph 18 of the said judgment, which reads as follows: '18. Rule 16 of the Drawback Rules provides that where an amount of drawback and interest, if a....
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....tex case does not help the writ petitioner in the instant case, owing to reasons alluded to supra. 15. This takes us to the exercise of writ jurisdiction and interference at the SCN stage. There are a long line of authorities in this regard. This Court deems it appropriate to refer to Kunisetty Satyanarayana case [Union of India and another Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28]. Most relevant paragraphs are Paragraphs 15 and 16 and the same read as follows: '15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.' 16. While dealing with another rule of discretion, i.e, rule pertaining to alternate remedy, Hon'ble Supreme Court in Satyawati Tandon Case [United Bank of India Vs. Satyawati Tondon and others reported in (2010)....
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....ther financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' 17. In the instant case considering the facts and circumstances, this Court is of the considered view that this is not a fit case for interfering at the SCN stage. This is because the exceptions for interfering in writ jurisdiction at SCN stage have been clearly laid down in a long line of authorities. It should be a case of SCN being issued without jurisdiction or a SCN that is attempting to re-open settled position of law or a SCN which has been issued with malafide intentions or a SCN which has been issued in a manner that leads one to believe that Authority issuing the SCN has pre-determined the issue. In other words, the adumbration is like this: a) Lack of jurisdiction; b) opening a well settled position of law; c) Malafides; d) Should be pre-determining the issue, which is subject matter of SCN in the instant case. Aforesaid enumeration is not exhaustive, but it is a adumbration of broad heads for the limited purpose of disposing of insta....