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B. Praveen Kumar v/s The Commissioner of Customs, Custom House, Tuticorin & Another


Company & Directors' Information:- PRAVEEN INDIA LTD . [Active] CIN = L21029WB1983PLC036326

Company & Directors' Information:- PRAVEEN & COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999DL1999PTC098397

    W.P.[MD]No. 1796 of 2019 & W.M.P.[MD]No. 1546 of 2019

    Decided On, 04 February 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

    For the Petitioner: R. Vinoth Bharathi, Advocate. For the Respondent: B. Vijay Karthikeyan, Advocate.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the SCN/DRI/BZU/43/2018 dated 17/10/2018 issued by the second respondent, direct the second respondent to issue fresh show cause notice by impleading the Exporters Viz., M/s. Realwax and M/s. Star Impex, the Regional Authorities of DGFT and the Proper Officers of Assessment, Customs House, Tuticorin as Noticees as per Sec.124 of Customs Act, 1962.)

1. The instant Writ Petition has been filed challenging the non consideration of the reply dated 17.01.2019, given by the petitioner to the show cause notice dated 17.10.2018, issued by the respondent under Section 28 of the Customs Act, 1962 [hereinafter referred to as ‘the Act’].

2. According to the learned Counsel for the petitioner, under the recently introduced proviso by the legislature on 29.03.2018, to Section 124 of the Act, once a reply is given to a show cause notice under Section 28 of the Act, the statutory authority will have to consider the same and only thereafter, call for a personal hearing.

3. According to the learned Counsel for the petitioner, in the instant case, without considering the reply dated 17.01.2019, the respondent has called for personal hearing on 14.02.2019. According to the learned Counsel, the petitioner had got the license assigned from a third party and the said third party will also have to be issued a show cause notice, which the respondent department failed to do in the instant case.

4. Admittedly, the petitioner has challenged only the show cause notice issued by the respondent. The respondent has not passed final orders. It is settled law that a show cause notice cannot be challenged before this Court under Article 226 of the Constitution of India, unless and until there is violation of the principles of natural justice or the authority concerned has issued the show cause notice without any jurisdiction.

5. Even though, the learned Counsel for the petitioner submits that the authority concerned has issued the show cause notice without jurisdiction, the petitioner has approached this Court even before final orders were passed by the respondent under Section 124 of the Act.

6. The show cause notice is a primary stage of adjudication and is not an order of any authority. The newly introduced proviso by the legislature on 29.03.2018 to Section 124 of the Act also does not make it mandatory for the authority concerned to consider the representation of the petitioner to the show cause notice issued under Section 28 of the Act.

7. Only after prima facie satisfaction that there is sufficient material / evidence in the reply given by the petitioner, the adjudicating authority under Section 124 of the Customs Act, may consider the reply, even before passing the final orders under Section 124 of the Act. Therefore, the authority to consider the reply to the show cause notice well before passing final orders is purely discretionary.

8. As observed above, only in cases where the show cause notice was issued without jurisdiction, this Court can exercise the power under Article 226 of the Constitution of India. In the instant case, after receipt of the reply from the petitioner, the respondent has fixed a date for personal hearing on 14.02.2019. Whatever defences available to the petitioner, including the additional defence than what was stated in the reply dated 17.01.2019, can be placed during the personal hearing before the respondent also. Ultimately, if the respondent fails to consider the submission of the petitioner in its final order under Section 124 of the Act, the petitioner has got alternate efficacious statutory remedy under the Act to redress his grievance. The various statutory remedies available under the Act, including the right of appeal to the Commissioner [Appeals] under Section 128 and to the Customs Excise and Service Tax Appellate Tribunal under Section 129 are only to prevent any miscarriage of justice. The rights of the petitioner has been adequately protected under the Act, to redress his grievance.

9. Therefore, in the light of the above observations, this Court is of the considered view that the Writ Petition filed by the petitioner is too premature and is devoid of any merits. However, considering the sub

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missions made by the learned Counsel for the petitioner, this Court is inclined to direct the respondent to duly consider the reply dated 17.01.2019 to the show cause notice issued under Section 28 of the Customs Act, in accordance with law by giving the petitioner adequate opportunity during the personal hearing as and when it takes place. 10. With the above direction, the Writ Petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
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