Coastal Energy Private Limited. ... vs The Union Of India And 11 Ors
2021 Latest Caselaw 13740 Bom

          Digitally signed
ANANT     by ANANT
          KRISHNA NAIK
KRISHNA   Date:
NAIK      2021.09.30
          10:49:39 +0530
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                                                                               8.WP(L).10206.2021.doc


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION

                                   WRIT PETITION (L) NO. 10206 OF 2021

                   Coastal Energy Pvt. Ltd. & Anr.                  ... Petitioners.
                        V/s.
                   The Union of India & Ors.                        ... Respondents.

Mr D. B. Shroff Senior Counsel a/w Mayank Jain i/b. Khaitan & Co. for the Petitioners.

Mr. P. S. Jetlyf Sr. Advocate a/w. Adv. J. B. Mishra & Adv. Sangeeta Yadav for the Respondents.

                                              CORAM :           A. A. SAYED &
                                                                S. G. DIGE, JJ

                                              DATED :           23rd September, 2021

                   P.C.:

The Petition has been fled by the Petitioners seeking the

following reliefs:

(a) That this Hon'ble High Court be pleased to issue a Writ of Prohibition or a Writ of Certiorari or a Writ in the nature of Prohibition and/or Certiorari any other writf order or direction an calling for a records of the case of the Petition and thereafter restrain the Respondents to continue with the Impugned Show Cause Notice No. F. No. DRI/MZU/INT.160/2014/977 dated 14 February 2017 (Exhibit "A" hereto) hereto and furtherf examine the legality and validity of the same and thereafterf quash the Impugned Show Cause Notice No. F No. DRI/MZU/INT.160/977 dated 14 February 2017.

(b) That during the pendency of the present petitionf this Hon'ble Court be pleased to grant interim relief by way of directing the Respondents not to adjudicate

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the Impugned Show Cause Notice No. F No. DRI/MZU/INT.160/2014/977 dated 14 February 2017"

2. Learned Senior Counsel for the Petitioners has invited our

attention to the judgment of 3-Judge Bench of the Supreme Court

in Canon India Private Limited vs. Commissioner of

Customs 2021 SCC Online SC 200. The Supreme Court in

paragraph nos. 15 & 16 has held as follows:

"15. It is well known that when a statute directs that the things be done in a certain wayf it must be done in that way alone. As in this casef when the statute directs that "the proper ofcer" can determine duty not levied/ not paidf it does not mean any proper ofcer but that proper ofcer alone. We fnd it completely impermissible to allow an ofcerf who has not passed the original order of assessmentf to re-open the assessment on the grounds that the duty was not paid/ not leviedf by the original ofcer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28 (4) to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same ofcer or his successor or any other ofcer who has been assigned the function of assessment. In other wordsf an ofcer who did the assessmentf could only undertake re-assessment [which is involved in Section 28 (4)].

16. It is obvious that the re-assessment and recovery of duties i.e. contemplated by Section 28(4) is by the same authority and not by any superior authority such as Appellate or Revisional Authority. It isf thereforef clear to us that the Additional Director General of DRI was not "the" proper ofcer to exercise the power

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under Section 28(4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside."

3. It is submitted by learned Senior Counsel for the Petitioners

that that in view of the categorical fndings of the Supreme Courtf

the impugned Show Cause Notice is wholly without jurisdiction

and is required to be quashed.

4. Learned Senior Counsel for the Respondents submitted that

the judgment of the Supreme Court was delivered in statutory

Appeals under Section 130E of the Customs Actf 1962 which arose

from a common fnal order of the Central Excise and Services Tax

Appellate Tribunal (CESTAT) dated 19 th Decemberf 2017. He

submitted that the Writ Petition is not maintainable.

5. Rule. Learned Counsel for the Respondents waives service.

6. Pending the hearing and fnal disposal of the Petitionf there

shall be interim relief in terms of prayer clause (b).

7. Sincef the Review Petition No. 400-403/2021 fled by the

Respondents on 07th Aprilf 2021 against the judgment in Canon

India Private Limited vs. Commissioner of Customs (supra)

is pending before the Supreme Courtf we grant liberty to the

parties to move the Court for fnal hearing of the Petition on

priority basisf once the order/judgment is rendered by the

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Supreme Court in the said Review Petition. The issue of

maintainability of the Writ Petition is kept open.

      (S. G. DIGE, J.)                       (A. A. SAYED, J.)




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