TaxTMI 
TaxTMI 
2026 (4) TMI 1455
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.... of M/s N. Brothers Overseas. The petitioner in W.P.(C) 4504/2026 is Sanjay Kumar, stated to be the proprietor of M/s Sanjay International. 3. On 10.10.2021, search proceedings were conducted by the Income Tax Authorities at the residential premises of family members of co-noticee Zakir Khan, during which certain electronic devices were seized. Thereafter, on 18.10.2021, acting on intelligence received from the Income Tax Authorities indicating alleged under-valuation and mis-declaration, the Directorate of Revenue Intelligence ["DRI"], Delhi Zonal Unit, conducted search proceedings under panchnama at the residential premises of the family members of the said co-noticee. Statements of co-noticees under Section 108 of the Customs Act, 1962 ["Customs Act"] came to be recorded on different dates between 19.10.2021 and 06.11.2023. 4. The proceedings thereafter culminated in issuance of Show Cause Notice ["SCN"] dated 12.10.2023 under Sections 28(4) and 124 of the Customs Act. The said notice was issued against the present petitioners and other co-noticees, and concerned allegations of under-valuation and mis-declaration in the import of various electronic goods and accessories th....
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....ended that the existence of an appellate remedy does not operate as an absolute bar to the exercise of writ jurisdiction where the impugned proceedings are ex facie without jurisdiction. According to learned counsel, the present case falls within the well-recognised exception to the rule of alternate remedy, inasmuch as the challenge raised is not merely to the correctness of the findings returned in adjudication, but to the very legality and jurisdictional validity of the proceedings culminating in the impugned OIO dated 01.08.2025. 9. Elaborating the above submission, learned counsel argued that the proceedings are vitiated at multiple stages on the ground of limitation and want of jurisdiction. It was submitted that the SCN dated 12.10.2023, the corrigendum dated 08.01.2024, and the impugned OIO dated 01.08.2025 are all liable to be examined by this Court in exercise of jurisdiction under Article 226 of the Constitution, as the challenge turns on admitted dates and statutory timelines and does not involve any disputed question of fact requiring relegation to the appellate forum. It is submitted that where proceedings are alleged to be non-est, void ab initio, or rendered with....
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....gro Chemicals Pvt. Ltd. v. Union of India and Others 2019 SCC OnLine P&H 4918. 14. Learned counsel further submitted that the SCN having been issued under Sections 28(4) and 124 of the Customs Act, its issuance was required to strictly conform to Section 28BB. It was contended that Section 28BB mandates completion of investigation, culminating in issuance of notice under Section 28(1) or Section 28(4), within two years from the date of the search initiating such investigation. According to learned counsel, in the present case, the investigation was not concluded within the said period, inasmuch as the statement of co-noticee Jitender under Section 108 of the Customs Act came to be recorded only on 06.11.2023, i.e. after expiry of two years from 18.10.2021, and the corrigendum to the SCN was thereafter issued on 08.01.2024. It was thus submitted that the SCN dated 12.10.2023, read with the corrigendum dated 08.01.2024, must be treated as having been issued beyond the period prescribed under Section 28BB and is therefore non-est in law. Learned counsel submitted that once the very initiation of proceedings is contrary to the statutory mandate, the entire proceedings founded thereo....
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....ct is equally untenable. According to him, even on the dates as set out by the petitioners themselves, the first search in the matter was carried out on 18.10.2021 and the SCN came to be issued on 12.10.2023, i.e. within the period of two years contemplated under Section 28BB. It was contended that the petitioners are incorrectly seeking to equate the corrigendum dated 08.01.2024 with the SCN itself, whereas the corrigendum issued under Section 154 of the Customs Act cannot alter the fact that the SCN had already been issued within limitation. 20. Learned counsel submitted that all the other grounds now sought to be urged by the petitioners, including the challenge relating to the corrigendum, alleged non-supply of relied upon documents, retraction of statements, denial of cross-examination, and alleged non-compliance of statutory requirements, stand dealt with in detail in the impugned OIO under the discussion and findings returned by the adjudicating authority. He submitted that the impugned order is an appealable order and the petitioners ought to be relegated to the statutory remedy available to them in accordance with law. 21. Mr. Naushad also pointed out that the petiti....
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....2003) 2 SCC 10. 25. Since the general principles governing writ interference in the face of an alternate statutory remedy stand settled, this Court now proceeds to examine the specific issues canvassed before it. The first of these is whether the corrigendum dated 08.01.2024 merely corrected the SCN dated 12.10.2023 or materially supplemented it in a manner bearing upon limitation and jurisdiction, and, allied thereto, whether a valid extension in law and on record existed so as to sustain the adjudication under Section 28(9) of the Customs Act. In this regard, it is relevant to note that, in the impugned OIO, the Adjudicating Authority took note of the objection of the noticees that the corrigendum reflected a continuation of investigation after issuance of the SCN, travelled beyond the limited scope of Section 154 of the Customs Act, was not a mere clerical correction, and in substance amounted to a supplementary SCN. The Adjudicating Authority, however, rejected the said objection and observed that the corrigendum was nothing but the statement dated 06.11.2023 of co-noticee Jitender Kumar recorded under Section 108 of the Customs Act, and that the same neither enhanced nor re....
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....ssioner has granted extension of one year to adjudicate impugned show cause notice is ill founded. XXXX 23. From the reading of sub-section (9) and (9A) of Section 28 of 1962 Act with judgment of this Court in the case of A.B. Sugar Ltd. v. State of Punjab, 2009 SCC OnLine P&H 7874, Aabhas Spinners Pvt. Ltd. v. UOI, (2010) 260 ELT 554 (P&H) and Assistant Collector of Customs v. Charan Das Malhotra, we can easily cull out that authorities are bound to; (i) divulge circumstances under which Proper Officer was prevented from passing order [28(9)] or record reasons [28(9A)] (ii) afford opportunity of hearing prior to passing order of extension and (iii) communicate copy of extension order passed either under sub-section (9) or (9A) of Section 28 of the 1962 Act." 15. Mr. Gibran Naushad, ld. SSC at this stage submits that a Special Leave Petition against the said decision in Shri Ram Agro Chemical Pvt. Ltd. through its Director Shri Amit Jain (Supra) is pending before the Supreme Court in Petition for Special Leave to Appeal (C) No. 12063/2020 titled 'Commissioner of Customs Ludhiana & Anr. v. Dee Kay Exports. 16. The Court ....
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....ified: Provided further that where any order for provisional release of the seized goods has been passed under section 110A, the specified period of six months shall not apply.]" 17. Further, this Court is of the opinion that usually, the Customs Department ought to intimate any extension which is granted, to the parties concerned. But this would not be a fatal error in the present case as the communication of the same is not mandated in the provision, i.e., Section 28 of the Customs Act, 1962. 18. Under these circumstances, the Petitioner has failed to make out any case for interference. The Order-in-Original dated 18th March, 2025 is an appealable order. Since an interim order was passed by this Court, the Petitioner is permitted to file an appeal within a period of one month from today, before the Commissioner of Customs (Appeals)." 27. The next issue concerns the petitioners' reliance on Section 28BB of the Customs Act and the question whether limitation thereunder is to be tested only with reference to the date of the original SCN or whether subsequent investigative steps and the corrigendum could affect its validity. The respondent has contended ....