TaxTMI 
TaxTMI 
2019 (7) TMI 1430
X X X X Extracts X X X X
X X X X Extracts X X X X
....e petitioner has further stated that a show-cause notice was issued on 30.01.2004, as an outcome of common investigation by the Additional Director General, Directorate General Intelligence Zonal Unit, Ahmedabad (respondent No.4). 05. It has been further stated that there was a reference of the show-cause notice answerable to the Commissioner, (Customs) Exports, Raigarh (Maharashtra) in the show cause notice answerable to the Additional Commissioner, Customs, Indore and there was corresponding reference to the show-cause notice answerable to the Additional Commissioner, Customs Indore, in the show-cause notice answerable to Commissioner (Customs) Exports, Raigarh (Maharashtra). 06. The petitioner, immediately after issuance of showcause notice, has preferred a writ petition before this Court i.e. W.P. No.5233/2009 and a ground was raised that the show-cause notice is without jurisdiction and it is illegal. 07. Another ground was raised that the respondent No.4, as a Custom Officer under the Customs Act, does not have power to sit as an appellate authority over the certificates (AR - 4) issued by the Superintendent, Central Excise and under the Customs Act, 1962, there is no prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed order i.e. on 20.05.2010. 11. The petitioner / Company has also made an attempt by touching the merits of the case, however, undisputedly, the order passed by the respondents is an appellable order. This Court can interfere with an appellable order, if it is without jurisdiction or if the show-cause notice suffers from illegality or perversity. 12. A reply has been filed in the matter and it has been stated that the petitioner on some pretext or other is making all possible attempts to ensure that the petitioner is not liable to pay the tax, which has been imposed by the respondents. 13. It has been stated that the show-cause notice was issued in the year 2004 and till date, the department has not been able to recover the amount from the petitioner, as there is an interim order granted by this Court in the present case. 14. It has further been stated that the respondent No.3 is the proper authority having jurisdiction under the law to issue such an order against the petitioner / Company and their officials. Rule 16 of the Customs Central Excise Duties and Service Tax Drawback Rules, 1995 prescribes that where an amount of drawback and interest, if any, has been paid erroneo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has submitted the reply to the show-cause notice as late as on 29.12.2006 i.e. after a lapse of two years and 11 months from the issuance of the show-cause notice. Even thereafter, with an aim to delay the process of adjudication, the petitioner has filed a writ petition i.e. W.P. No.5233/2009 before this Hon'ble Court against the show-cause notice proposing a smaller amount. Surprisingly, respondent No.3 was not made a respondent therein, which shows the intention of the petitioner to delay the process of adjudication. In the aforesaid writ petition, the petitioner has willfully misstated the facts before this Court that they have filed the reply to the show-cause notice timely and the respondents have not communicated even after five years. It has been further that the show-cause notice was issued on 30.01.2004 and the reply was submitted by the petitioner on 29.12.2006 (i.e. after a lapse of two years and 11 months). Thereafter, respondent No.2 has fixed the personal hearing in the year 2009 but the petitioner has wrongly stated in the aforesaid petition that they have not received any communication for five years and thus, it should be deemed that the notice was dropped. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....spondent No.3 as to why the duty drawback amounting to Rs. 6,40,92,368/- wrongly availed by the petitioner should not be disallowed under Rule 16 of the Customs, Central Excise and Service Tax Drawback Rule, 1995 and recovery of Central Excise Duties amounting to Rs. 2,25,930/- under Rule 12 of the CENVAT Credit Rules and recovery of Rs. 5,72,174/- under the proviso to Section 11-A along with penalty and interest be not recovered. 24. Another show-cause notice was issued to the petitioner to show-cause to respondent No.2 as to why DBK amount to Rs. 26,08,366/- should not be allowed under Rule 16 of the Customs, Central Excise and Service Tax Drawback Rules, 1995 along with penalty and interest. 25. The notification dated 07.07.2019 issued in exercise of the power conferred by sub-section (1) of the Section 4 of the Customs Act, 1952 reads as under:- "Appointment of Customs Officers - Supersession of Notification No.58/92-Cus. In exercise of the powers conferred by subsection (1) of Section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.58/92-Customs (N.T.), dated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ef Commissioner 2. Commissioner 3.Additional Commissioner 4. Joint Commissioner 5. Deputy Commissioner or Assistant Commissioner 6. Superintendent 7. Inspector 2 Officers of Directorate General (Vigilance), namely:- 1. Director General (Vigilance) 2. Additional Director General 3.Additional Commissioner (Vigilance) 4. Joint Commissioner (Vigilance) 5. Deputy Commissioner of Assistant Commissioner (Vigilance) 1. Chief Commissioner 2. Commissioner 3. Additional Commissioner 4. Joint Commissioner 5. Deputy Commissioner or Assistant Commissioner 3 Officers of Directorate General of Revenue intelligence, namely:- 1. Director General 2. Additional Director General 3. Additional Director 4. Joint Director 5. Deputy Director or Assistant Director 6. Senior Intelligence Officer 7. Intelligence Officer 1. Chief Commissioner 2. Commissioner 3. Additional Commissioner 4. Joint Commissioner 5. Assistant Commissioner or Deputy Commissioner 6. Superintendent 7. Inspector 4 Officers of Directorate General of Central Economic Intelligence Bureau namely:- 1. Deputy Director General 2. Assistant Director General 3. Senior Technical Officer 4. Intelligence ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the following orders:- "The present writ petition has been filed being aggrieved by the order dated 18-05-2016 passed by the Assistant Commissioner, Office of the Commissioner of the Customs (Export) I.C.D. Tughlakabad, New Delhi as well as order dated 05-04-2016. The Directorate of Revenue Intelligence has issued order dated 05-04-2016 in respect of certain Companies freezing their bank accounts. The aforesaid order has been passed under the provisions of The Customs Act, 1962 and as argued by the learned counsel for the respondent Mr Prasanna Prasad appearing for Ministry of Commerce and Industry the orders impugned are appealable u/s 128 of the Customs Act, 1962 and the same reads as under :- "128. Appeals to [Commissioner (Appeals)]. - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Commissioner of Customs] may appeal to the # [Commissioner (Appeals)] within [sixty days] from the date of communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet." In light of the aforesaid, the question of interference by this Court does not arise. 33. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of State of N.C.T. Of Delhi & Another v/s Sanjeev alias Bittu reported in AIR 2005 Supreme Court 2080 and his contention is that judicial review can be done on the ground of illegality, irrationality and procedural impropriety. 34. The aforesaid case is relating to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... exercise in futility." In light of the aforesaid, it can never be said that the alternative remedy under the statute is not effective and is only a empty formality. The alternative remedy is an effective remedy and it is certainly not an empty formality and the authority has acted in accordance with the statutory provision, and therefore, question of interference by this Court, as remedy of appeal is available, does not arise. The competent authority has also passed the order after observing the principles of natural justice and fair play, and therefore, the judgment again does not help the petitioner in any manner. 36. Reliance has also been placed upon a judgment delivered in the case of Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota v/s Shukla & Others reported in (2010) 4 SCC 785. 37. Learned counsel for the petitioner by relying upon the aforesaid judgment, has argued before this Court that principles of natural justice and fair play have not been followed in the present case. 38. This Court has carefully gone the record. In the present case, the petitioner was served with the proper show-cause notice, he was granted an opportunity of he....