Karnataka High Court
Gemini Dyeing And Printing vs The Commissioner Of Customs on 17 September, 2014
Bench: N.Kumar, Rathnakala
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 17TH DAY OF SEPTEMBER 2014
PRESENT:
THE HON'BLE Mr.JUSTICE N.KUMAR
AND
THE HON'BLE Mrs.JUSTICE RATHNAKALA
W.A.Nos.6400-6402/2013(T-TAR)
BETWEEN:
1. GEMINI DYEING & PRINTING
MILLS LTD., NO.16-B, PHASE-I
PEENYA INDUSTRIAL AREA
BANGALORE-560 058
(REPRESENTED BY ITS
MANAGING DIRECTOR
MR. GULLU G.TALREJA)
2. M/S R.V.CORPORATION
V.P.K. NO.108, SURVEY NO.21/22/23
T.DASARAHALLI, BANGALORE-560 057
(REPRESENTED BY ITS PARTNER
MR.GULLU G.TALREJA)
3. M/S GEMINI FASHIONS (P) LTD.
(NOW KNOWN AS M/S ARYAN
GARMENTS PVT.LTD.
1E, II PHASE, IST MAIN ROAD
PEENYA INDUSTRIAL AREA
BANGALORE-560 058
(REPRESENTED BY ITS DIRECTOR
MR. GULLU G.TALREJA) ... APPELLANTS
(BY SRI K.PARAMESHWARAN.K., ADVOCATE)
2
AND:
1. THE COMMISSIONER OF CUSTOMS
C.R.BUILDING, NO.1, QUEEN'S ROAD
BANGALORE-560 001
2. THE REVISIONARY AUTHORITY
THE JOINT SECRETARY TO THE
GOVERNMENT OF INDIA
UNDER SECTION 129DD OF THE
CUSTOMS ACT, 1962
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
14, HUDCO, VISHALA BUILDING
B WING, 6TH FLOOR
BHIKAJI CAMA PLACE
NEW DELHI-110 066 ... RESPONDENTS
(BY SRI P.S.DINESH KUMAR, ADVOCATE)
THESE WRIT APPEALS ARE FILED UNDER
SECTION 4 OF THE KARNATAKA HIGH COURT ACT, TO
SET ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.44217-44219/2011 DATED 11.9.2013.
THESE APPEALS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, N.KUMAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals are preferred by the assessee challenging the order passed by the learned Single Judge, declining to interfere with the order passed by the original authority as well as the appellate 3 authority on the ground that the facts stated in the addendum are substantially the same as stated in the original show-cause notice and does not structurally alter the original show-cause notice.
2. Appellant No.1 is a company engaged in the activity of independent processors of textiles falling under Chapters 52, 55, 58 & 60 of the schedule to the Central Excise Tariff Act, 1985. Appellant No.2 is a partnership concern and carrying on the business of exporting readymade garments to various countries from the factory situated at T.Dasarahalli, Bangalore. Appellant No.3 is a private limited company engaged in the manufacture of readymade garments which are also exported to various countries. All the appellants have claimed duty drawback after preparing necessary documents and complying with all the requirements in this regard. The duty drawback claimed by them had been sanctioned and granted by the customs authority. When things stood thus, based on certain 4 information received to the effect that certain finished garments are being removed clandestinely, the premises of the assessee was inspected by the customs authorities. Several statements were recorded in the course of investigation and also obtained certain documents. Thereafter, a common show-cause notice was issued on 18.07.2001 under section 124 of the Customs Act, calling upon them to show cause as to why penalty should not be imposed on them for violating the conditions of E.O.U. scheme. Subsequently, on 19.9.2001, a corrigendum was issued. The assessee replied on 20.12.2001. Thereafter, on 2.5.2002, one more addendum was issued, altering the terms of the show-cause notice. Thereafter, the impugned orders were passed.
3. Challenging the orders passed by the two authorities, the appellants preferred a writ petition urging two grounds, one there is a substantial alteration in the terms of the show-cause notice, 5 secondly, on the ground that addendum is issued beyond the period of five years and therefore, the entire proceedings are vitiated. Learned single Judge, has elaborately considered the said two aspects and after referring to the various judgments on which parties relied upon, has categorically held if the limitation is not prescribed by the statute, the Court cannot prescribe any limitation. However, the Court can consider whether exercise of power had the effect of disturbing the rights of the citizens. After carefully going through both the notice and addendum, it has recorded a categorical finding that addendum shows that changes to the original show-cause notice do not structurally alter the show-case notice. Whatever is alleged in the show-cause notice is virtually repeated in the addendum except calling upon the officer to show cause as to why duty draw back should not be recovered. Therefore, he was of the view that it cannot be said that addendum structurally alters the 6 nature of show-cause notice and it is barred by limitation. In fact, no limitation has been prescribed for recovery of duty draw back and therefore, as he did not find any merit in the writ petition and the impugned orders passed were legal and valid, he declined to interfere with the said order. Aggrieved by the said order, these appeals are filed.
4. Learned Counsel for the appellants reiterated the very same grounds urged before the learned single Judge. However, we do not find any substance, and as rightly held by the learned Single Judge, for recovery of duty draw back, statute has not prescribed any limitation. In the facts and circumstances of the case, proceedings could be initiated within a reasonable time. Therefore, it cannot be said that proceedings are barred by limitation. Insofar as the other ground is concerned, as rightly held by the learned Single Judge, substantially the allegation in the show-cause notice and the addendum are identical except few 7 corrections. In fact, addendum is in the nature of amendment to the show-cause notice. Therefore, the appellants were fully conscious of the allegations against them which are based on documentary evidence and therefore, it cannot be said either they are taken by surprise or any prejudice is caused by that addendum. Therefore, the learned single Judge was justified in dismissing the writ petition. We do not find any grounds to interfere with the well considered order passed by the learned single Judge.
There is no merit in these appeals and they are accordingly dismissed.
Sd/-
JUDGE Sd/-
JUDGE Yn.