Calcutta High Court
Chandrakant Seth vs Collector Of Customs on 22 June, 1993
Equivalent citations: 1996(55)ECC31, 1993(68)ELT289(CAL)
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT Ruma Pal, J.
1. The petitioner had imported certain goods. The goods were assessed to Duty and the petitioner took delivery of the goods. Such importation took place in the year 1983. On 17th February, 1986 five several Show-Cause Notices were issued to the petitioner in respect of this importation under Sections 28 and 124 of the Customs Act, 1962 (hereinafter referred to as 'the said Act'). The petitioner was detained under COFEPOSA in March, 1986. According to the petitioner, he was detained on allegations which were identical with those contained in the Show-Cause Notice. According to the petitioner, the Central Advisory Board released the petitioner on the ground that there was no sufficient cause for petitioner's detention. On 8th July, 1986 the petitioner asked for furnishing various documents, information, materials etc. The Collector, according to the petitioner, fixed the date of hearing on 14th July, 1986. It is the petitioner's further case that although inspection of certain documents were given by the respondents from time to time, the material documents were not shown, nor copies thereof furnished. The Customs Authorities finally fixed the date of hearing on 30th December, 1986. This writ application was moved on 24th December, 1986. An ad interim order was passed restraining the respondents-Authorities from proceeding with the Show Cause Notice. An interim order was also passed directing the Authorities concerned to make available the documents listed in the Schedule to the petition, and to produce Customs Officers for cross-examination at the hearing of the adjudication proceeding. It also appears that during the pendency of the writ application, a further application was made by the petitioner for interim relief. That application is stated to be still pending.
2. The respondents have said that they have filed an affidavit-in-op-position, although no copy of the affidavit-in-opposition appears in the records. Be that as it may, an affidavit-in-reply has been filed by the writ petitioner.
3. The writ petitioner has raised several contentions before this Court. The first contention is that the goods having already been cleared before the initiation of the proceedings under Section 124 of the said Act, there was no scope for taking any action under Section 28 or Section 124 of the said Act against the petitioner. Secondly, it is contended that the proceedings under Sections 124 and 28 of the said Act would amount to reviewing of the order by which the goods were directed to be released and such review was not permissible except under Section 129D of the said Act. Thirdly, it is contended that the actions initiating the proceedings under Section 124 and Section 28 of the said Act were mala fide. Fourthly, it is contended that the Collector had no jurisdiction to issue the Show Cause Notice. Fifthly, it is submitted that in any event; if the adjudication proceedings are allowed to be continued, the respondents should comply with the interim order dated 4th December, 1986 which was passed in terms of prayer (h) of the writ petition.
4. Many of the submissions, made by the petitioner, are not reflected in the writ petition at all. In the writ petition the grievance is only that the Customs Authorities were proceeding with the hearing of the adjudication proceedings without giving the petitioner copies of the documents etc. Nevertheless, since the point has been argued by the learned Counsel appearing on behalf of the petitioner, this Court briefly deals with the same.
5. The first submission of the petitioner proceeds on a misconception that goods must be available before action can be taken under Section 124 or Section 28 of the said Act. Section 28 deals with refund and does not relate to goods at all. Section 124 deals with confiscation or penalty. The two are disjunctive and in any event, the liability to confiscation cannot be equated with the availability for confiscation. A person may be liable to be arrested but may be absconding.
6. As far as the second submission of the petitioner that the proceedings under Section 124 and Section 28 of the said Act amount to a review of an order of release under Section 47 cannot be accepted in view of the decision of a Division Bench of this Court in the case of "Collector of Central Excise v. Hindus-thin Motors", . Additionally, Section 28 pre-supposes that an order has been passed allowing refund and that pursuant to such order, refund has been made.
7. In the body of the writ petition there is no challenge whatsoever to the Show Cause Notice. It is true that in one of the grounds an allegation of mala fide has been made. Such an allegation being devoid of any particulars and not forming part of the body of the writ petition cannot be acted upon by this Court.
8. The submission regarding jurisdiction of the Collector to issue the Show-Cause Notice was not pressed in view of the proviso to Section 28 of the said Act.
9. As far as the prayer for inspection is concerned, in my view, the Customs Authorities will consider the Schedule to the writ petition, being Annexure 'F to the writ petition, and will allow inspections of the documents required and produce such officers as have been mentioned in the Schedule.
10. Accordingly, I direct the Customs Authorities to consider the Schedule to the writ petition, being Annexure 'F' thereto, and to allow inspection of the documents required within a period of 2 weeks from the date of communication of this Dictated Order. The Customs Authorities are also directed to produce such officers as have been mentioned in the said Schedule at the hearing.
11. It is made clear that if such inspection cannot be given or such officers cannot be produced at the hearing for any reason whatsoever, the Customs Authorities shall record the reasons for the same and communicate the same to the petitioner within the same period, that is, within 2 weeks from the date of communication of this Dictated Order.
12. The petitioner will be at liberty to file a reply to the Show Cause Notice within a period of 2 weeks thereafter. In default of the petitioner replying to such Show Cause Notice within the time specified, the Collector will be at liberty to proceed in accordance with law unless time to furnish such reply is extended by the Collector.
13. The Collector will complete the proceedings against the petitioner within a period of 8 weeks after the inspections are complete or within such further time as may be mutually agreed to between the parties. The Collector will give the petitioner an opportunity of being heard. At least 48 hours clear notice must be given in this regard.
14. It is made clear that in the event the petitioner or his representative chooses not to attend the hearing, the Collector may proceed ex parte.
15. It is also made clear that this Court has not considered the merits of the allegations against the writ petitioner.
16. The writ petition is accordingly disposed of and except as stated all interim orders are vacated.
17. There will be no order as to costs.
18. All parties concerned are to act on a signed copy of this Dictated Order on the usual undertaking.