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2022 (10) TMI 334
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....per request)] RAJIV SHAKDHER, J. (Oral): 1. This writ petition was listed before the Court, in the first instance, on 29.08.2022, when after hearing the counsel for the petitioner as well as the counsel for the respondents i.e., Ms Nidhi Raman, who appeared on behalf of respondent no.1/Union of India and Mr Satish Kumar, who appeared on behalf of the contesting respondent i.e., respondent no.2/revenue, the following had been recorded: "1. The principal grievance of the petitioner is, that the impugned Order-in-Original dated 25.05.2022 is based on a show cause notice ["SCN"], which is untenable in law. 2. Mr S. Sunil, who appears on behalf of the petitioner, says that the SCN could only have been issued after pre-sho....
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....2) The person chargeable with duty or interest may, within fifteen days from the date of communication referred to in sub-regulation (1), make his submissions in writing on the grounds so communicated: Provided that if no response is received, from the person to whom the grounds on which notice is proposed to be issued, is received within the specified time, the proper officer shall proceed to issue the notice to the said person without any further communication : Provided further that while making the submissions, the person chargeable with duty or interest shall clearly indicate whether he desires to be heard in person by the proper officer. xxx xxx xxx (4) Where the proper officer, after consultation, ....
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....N is dated 22.12.2021. 10. Prima facie, we are of the view that the impugned order, which is predicated on the SCN, is impregnated with a legal lacunae. 11. Mr Satish Kumar, who appears on behalf of the contesting respondent, i.e., respondent no.2, says that he would require time to return with instructions. 12. In case instructions are received to resist the writ petition, counter-affidavit will be filed before the next date of hearing. 13. List the matter on 19.09.2022." 2. As would be evident from the extract of the order dated 29.08.2022, we had given an opportunity to Mr Kumar to return with instructions, and in the event, instructions received were to resist the petition, he was required to file ....
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....mmunication between respondent no.2/revenue and the petitioner would suffice, and that broadly, it would, substantially take care of the safeguards incorporated in the proviso appended to Section 28(1)(a) of the Customs Act, 1962 [in short "1962 Act"] and Regulation 3(2) of the Pre-Notice Consultation Regulations, 2018 [in short "2018 Regulations"]. 10. Mr S. Sunil, who appears on behalf of the petitioner, contends otherwise. 10.1 According to Mr Sunil, a perusal of the letter dated 28.06.2021 would show, that it was issued when Post Clearance Audit was conducted. 11. Furthermore, according to Mr Sunil, the said communication was not issued in terms of the aforementioned provisions of the 1962 Act and the 2018 Regulations. 12. M....
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....oncerning the ground(s) communicated to him in the pre-consultation notice; which, as indicated above, is required to be served prior to issuance of the SCN. 16. In the facts of this case, it is not in dispute, that the pre-consultation notice is dated 14.12.2021, and therefore, 15 days would have expired only on 29.12.2021. 17. Admittedly, the SCN was issued prior to the expiry of the statutory timeframe. 17.1 The SCN, as noticed in our order dated 29.08.2022, is dated 22.12.2021. 18. Therefore, clearly, there has been a violation of not only the safeguard provided in the proviso appended to Section 28(1)(a) of the 1962 Act requiring holding pre-notice consultation with the person chargeable with tax and interest but also infra....
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.... Customs Act, 1962 along with interest at appropriate rate under Section 28AA of the Customs Act, 1962." 21. We are of the opinion, that the pre-show cause notice consultation, as provided, both in the 1962 Act as well as the 2018 Regulations, is necessary, as the object of having such provisions is to stem the tide of litigation between the revenue and assessee. 21.1 With the docket explosion that Courts are experiencing, this is a wholesome provision, which the revenue needs to scrupulously adhere to. 22. The fact that respondent no.2/revenue has failed to adhere to this provision, is quite evident in the instant case. 23. Accordingly, for the foregoing reasons, we are of the view, as noticed at the very outset, that the impug....