AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2009 (6) TMI 12
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....n by claiming exemption under notification No.45/2002, Customs, dated 22.04.2002 as amended from time to time. The said notification provides for clearance of the imported goods by production of DEPB licence by the importer in lieu of payment of duty. 5. The Government of India, by its Import and Export Policy, announced various types of incentives for exporters so as to enable them to compete with others in the international market. DEPB licences are issued by the Director General of Foreign Trade constituted by the Ministry of Commerce. The said licences are issued with the endorsement like Transferable and Non-Transferable. The exporters who export specified goods as per the standard input and output norms are eligible for a fixed percentages of credit as per the norms fixed by the Director General of Foreign Trade. If a person is having the licence with the Transferable endorsement, the licence being freely transferable, the same is being sold to other persons in the open market. Therefore, in view of the transferable DEPB licences, the imports can be made through ports from where the exports are made. 6. The petitioners are said to have purchased the transferable lincences t....
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....8. In view of the said irregularities and evasion of payment of duty, the petitioners were directed to pay the above said duty by individual demand notice dated 25.06.2004, but the petitioners filed Writ Petition Nos.1196, 2617, 2618 and 2630 of 2004 with a plea to quash the said demand notice on the ground that without show cause notice, no demand is legally maintainable. The said Writ Petitions were admitted and orders of interim stay were granted by a learned Single Judge. Subsequently, the said Writ Petitions came to be dismissed as infructuous on the submissions that the show cause notices have already been issued. Thereafter, the respondents have issued the present show cause notices, dated 24.12.2004. Again by challenging the same show cause notices, the present Writ Petitions have been filed. 9. The question raised in the present Writ Petitions is whether the Writ Court should entertain the present Writ Petitions questioning the notice to show cause or not. Today, it is well settled that both the High Courts as well as the Hon'ble Supreme Court have repeatedly held that the Court shall not exercise its jurisdiction under Article 226 of the Constitution of India to test the....
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....ssumed jurisdiction which they did not possess. 11. The learned Senior Counsel appearing for the petitioners further invited the attention of this Court to the show cause notices stating that the said show cause notices issued under Section 28(b) of The Customs Act, 1962 are without jurisdiction, because the said show cause notices have been issued beyond the period of limitation. Therefore, the show cause notices issued are barred by time under Section 28(b) of the Customs Act, 1962. 12. It is further submitted that the case of the petitioners has been covered by a judgment of the Hon'ble Supreme Court reported in 1997 (94) E.L.T. 289 (S.C.) (Kaur & Singh vs. Collector of Central Excise, New Delhi) wherein, it has been held that show cause notice issued beyond the period of limitation of one year under Section 11A of the Central Excise Act 1944 was held to be without jurisdiction and on that basis the said Writ Petition was allowed. But, in the present case the show cause notices have been issued under Section 28(b) of the Customs Act 1962. Section 11A of the Central Excise Act, 1944 gives the authorities concerned to issue show cause notice period of one year as limitation. The....
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.... the grounds prescribed. No proceeding has been initiated under the provision of the Foreign Trade Development and Regulations Act, 1992 or under the Foreign Trade Regulation Rules, 1993 for rendering the licences "nonest", since in law those licences do not automatically become nonest but could be avoided only by process known to law." 15. In fact, the second respondent after seeing that the petitioners have not purchased genuine DEPB licences, has issued demand notices dated 25.06.2004 demanding the petitioners to pay Rs.35,45,116/-, Rs.23,11,837/-, Rs.49,70,109/-and Rs.87,77,036/- respectively. Immediately, the said demand notices were challenged by the petitioners by filing Writ Petitions in W.P.Nos.1196, 2617, 2618 and 2630 of 2004. This Court was also pleased to grant stay of entire proceedings. But both sides were not in a position to inform as to what happened to the earlier petitions. Subsequently, it appears the present show cause notices have been issued. Again the show cause notices have been challenged in the present Writ Petitions without mentioning the earlier Writ Petitions, order of stay, limitation etc. 16. In para 12 of the affidavit filed in support of the wri....
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....the Karnataka High Court reported in 1992 (61) E.L.T. 364 (Applied Industrial Products Private Ltd., Vs. Collector of Central Excise) wherein, it has been held that the show cause notice issued beyond the limitation has to be quashed on the ground of limitation under proviso to Section 11A of the Central Excise Act 1944. Even if the petition is dismissed by directing the petitioner to go back to the respondent to show cause to the notice, again the respondent has no power to pass any order since it is barred by time. In which event, the exercise going to be taken by the respondent will also be without jurisdiction. Therefore, the arguments advanced by the learned Senior Counsel appearing for the petitioners on these subjects that the show cause notices in the present case do not satisfy any one of the ingredients of the proviso to Section 11A of the Act, was also duly considered under the law. Reliance is also placed on the observations made by the Hon'ble Supreme Court in Union of India vs. Madhu Milan Syntex reported in 1988 (3) SCC 348 wherein, it is held that the notice should contain the basis for the short levy and the notice merely asking the assessee to show cause against d....
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....i Exports Ltd., Vs. UOI, this Court has categorically held that both the authorities will have jurisdiction to deal with a licence when violations had been committed in respect of the said licence which are actionable under both the enactments. 22. The main thrust of the arguments of the learned Senior Counsel appearing for the petitioners is that when the demand ex facie barred, the authorities lacks jurisdiction in issuing such notices and also submitted that the authorities cannot even take the benefit of proviso to issue the show cause notices belatedly. The petitioners have already challenged the show cause notices dated 25.06.2004 by filing Writ Petitions. The said Writ Petitions were admitted and order of stay was granted. After some time, the petitioners withdrew the Writ Petitions. Subsequently, the present show cause notices have been issued on 24.12.2004. Neither the fact of challenging the earlier demand notices by filing Writ Petitions by the petitioners have not been explained in the affidavit nor the petitioners explained in their argument as to how the period of stay granted by this Court in W.P.No.1196 of 2004 against demand notice, can be excluded while calculati....