Calcutta High Court (Appellete Side)
M/S. Right Minerals Private Limited & ... vs Directorate Of Revenue Intelligence on 12 April, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
4.2017
No.64
No.13
W. P. 8120 (W) of 2017
M/s. Right Minerals Private Limited & Anr.
Vs.
Directorate of Revenue Intelligence, Government of India & Ors.
Mr. Joydip Kar, Sr. Adv.
Mr. Prasenjit De
Mr. Shakeel Mohammd Akhter ... for the petitioners
Mr. Kaushik Dey ... for the respondent nos.1 & 2
Mr. Uday Sankar Bhattacharya Mr. Bhaskar Prosad Banerjee ... for the respondent no.3 The petitioner assails a show cause notice dated February 22, 2017 issued by the Customs Authority under Section 28 of the Customs Act, 1962.
Learned senior advocate for the petitioner submits that the petitioner had imported betel nuts from Srilanka under the Indo Srilanka Treaty. He submits that the imports were through two ports. In respect of Nhava Sheva, the consignment has been released. So far as Durgapur is concerned the Custom authority yet to assess the duty payable. The goods are presently lying seized by the Customs Authority of Durgapur. The petitioner has applied for provisional release, which has since been decided. The petitioner has not accepted such provisional assessment till date. He relies upon (2011) 1 CHN 381, (A.S. Syndicate (Warehousing) P. Ltd. v. Commissioner of Customs (Port)), (2007) 1 SCC 62, (Commissioner, Central Excise & Customs, Mumbai & ITC Ltd.) in 2 support of his proposition that a provisional order of assessment will not permit invocation of Section 28 of the Customs Act, 1962.
Learned advocate appearing for the department submits that, so far as the import from Nhava Sheva Port is concerned the assessment has been done. Therefore, the Court should not interfere with the impugned show cause notice at least to that extent.
I have considered the rival contentions of the parties and the materials made available in the record.
Courts are required to be interfering with a show cause notice. However, Courts are required to interfere with the show cause notice where it is demonstrated that the issuing authority suffer from inherent lack of jurisdiction. A.S. Syndicate (supra) is of the view that, Section 28 of the Customs Act, 1962 cannot be invoked until a final order of assessment has been passed. A provisional order of assessment will not suffice fulfillment of the requirement of Section 28 of the Customs Act, 1962. ITC Ltd. (Supra) is on the provisions of Central Excise Act, 1944 and after considering similar provisions of such Act, it is of the same view. In the present case, the impugned show cause notice concerns the same importer but in respect of imports made through two ports namely Nhava Sheva and Durgapur. So far as Nhava Sheva is concerned the petitioner has already obtained released of the goods upon payment of their declared duty. Therefore, a proceeding under Section 28 is maintainable in respect of the import from Nhava Sheva Port. The impugned show cause notice 3 take into its wake, import through Durgapur also. So far as Durgapur is concerned the final assessment is yet to be made.
In such circumstances, interest of justice will be sub-served by allowing the proceeding under that the impugned order of show cause so far as Nhava Sheva is concerned. The custom authorities will not deal with the Durgapur imports by the impugned show cause notice. The Customs authorities are at liberty to proceed in respect of Durgapur in accordance with law.
It is clarified that this order will not prevent the custom authority to recover any duties under any account, in accordance with law.
W.P. 8120 (W) of 2017 is disposed of.
No order as to costs.
Urgent photostat website copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J. )