Fahim Ibrahim Waghoo vs Union Of India (Through Dept. Of ...
2021 Latest Caselaw 17773 Bom

                                                        9-WP.9237.2021


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CIVIL APPELLATE JURISDICTION

                 WRIT PETITION NO. 9237 OF 2021

Fahim Ibrahim Waghoo                  }   Petitioner
          versus
Union of India and Ors.               }   Respondents


Mr. Prashant Mishra i/b. Mr. Deepak Singh for
the petitioner.

Mr. Jitendra B. Mishra with Mr. Ashutosh Mishra
for respondent nos. 1 to 3.


                    CORAM :- DIPANKAR DATTA, CJ &
                             M. S. KARNIK, J.

                    DATE :-       DECEMBER 21, 2021


PC :-

1. The challenge in this writ petition is to a show-cause notice dated February 28, 2019 issued by the second respondent.

2. Reliance is placed by Mr. Prashant Mishra, learned advocate for the petitioner on the decision of the Supreme Court in M/s. Canon India Pvt. Ltd. Vs. Commissioner of Customs, reported in 2021 (376) ELT 3 (SC) and the order dated August 31, 2021 of the Supreme Court in Civil Appeal No. 3411 of 2020 (Commissioner of Customs, Kandla vs. M/s. Agarwal Metals and Alloys) in support of the contention that the show-cause notice suffers from absolute want of jurisdiction. He also places reliance on this Bench's judgment dated October 26, 2021 in Writ Petition No. 5154 of

J.V.Salunke,PS 9-WP.9237.2021

2021 (Kitchen Essentials & Ors. Vs. the Union of India and Ors.), wherein the aforesaid decisions were followed, to claim that the impugned show-cause notice ought to be set aside.

3. We are informed by Mr. Jitendra Mishra, learned advocate for the respondents that an application for review of the decision in Canon India Pvt. Ltd. (supra) is pending before the Supreme Court and that a policy decision has been taken to carry all orders of the High Courts in appeal where show-cause notices have been or are being interdicted based on the decision in Canon India Pvt. Ltd. (supra) and Commissioner of Customs, Kandla (supra).

4. We have inquired from Mr. Jitendra Mishra and have been apprised that the decision in Kitchen Essentials (supra) is also likely to be challenged before the Supreme Court soon.

5. We are, however, informed that till date no interim order has been passed in the review application referred to above.

6. In such view of the matter, we are of the prima facie view that the petitioner has set up a strong case for grant of interim relief. There shall be interim relief in terms of prayer clause (b), which reads thus: -

"b) That the pending hearing and final disposal of the above petition, by an interim order and injunction of this Hon'ble Court, the Respondents, their subordinate servant and the agents be restrained from taking any steps for recovery of differential duty with interest and the amount of penalty confirmed by Impugned Show Cause Notice bearing F.No.DRI/ MZU/NS/Enq-137/2018/854 dated 28.02.2019 issued by the Respondent No. 2."

J.V.Salunke,PS 9-WP.9237.2021

7. Let the respondents file reply affidavit by 6 (six) weeks; rejoinder thereto, if any, may be filed by 2 (two) weeks thereafter.

8. Liberty is granted to apply for early disposal of the writ petition, depending on the fate of the review application now pending before the Supreme Court.

(M. S. KARNIK, J.) (CHIEF JUSTICE)

PRAVIN DASHARATH PANDIT Digitally signed by PRAVIN DASHARATH PANDIT Date: 2021.12.22 10:35:49 +0530

J.V.Salunke,PS