Bombay High Court
Alphard Maitime Pvt. Ltd Thr. ... vs Union Of India And Ors on 3 January, 2022
Bench: R.D. Dhanuka, S. M. Modak
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37-wp-5533.21.doc
Digitally signed
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
by BIPIN
BIPIN
DHARMENDER
PRITHIANI
CIVIL APPELLATE JURISDICTION
DHARMENDER
PRITHIANI Date:
2022.01.04
14:27:19
+0530
WRIT PETITION NO. 5533 OF 2021
Alphard Maitime Pvt. Ltd. ... Petitioner
Versus
Union of India and Ors. ... Respondents
******
Dr. Sujay Kantawala a/w Mr. Sujit Sahoo, Mr. Aditya Talpade and Mr.
Mahadeo Londhe for the Petitioner.
Mr. Jitendra B. Mishra a/w Ms. Sangeeta Yadav, AGP for the
Respondent Nos. 4 and 5.
******
CORAM: R. D. DHANUKA AND
S. M. MODAK, JJ.
DATE : 3rd JANUARY, 2022.
P.C. :-
. Mr. Mishra, learned counsel for the respondent nos. 4 and 5
waives service. Issue notice upon the respondent nos. 1 to 3, returnable
on 28th March, 2022.
2. The petitioner has impugned the notices dated 18th August, 2021
and 30th August, 2021 annexed at Exhibits 'O' and 'Q' respectively as
without jurisdiction and in violation of principles of natural justice.
3. It is the case of the petitioner that the assessment in support of 13
vessels is completed by the respondent no.3 at Mumbai. All the bill of
entries were filed at Mumbai. The duties are paid at Mumbai. It is the
case of the petitioner that the respondent no.5 has no jurisdiction to
issue any notices of demand which are impugned in this writ petition.
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37-wp-5533.21.doc
In support of this submission, Dr. Kantawala, learned counsel for the
petitioner invited our attention to the judgment of Hon'ble Supreme
Court in case of M/s. Canon India Pvt. Ltd. v/s. Commissioner of
Customs, 2021 (376) ELT 3 (SC), order dated 31st August, 2021 passed
by the Hon'ble Supreme Court in Civil Appeal No. 3411 of 2020 in
case of Commissioner of Customs, Kandla v/s. M/s. Agarwal Metals
and Alloys. Learned counsel also placed reliance on the judgment of
this Court in case of Kitchen Essentials and Ors. v/s. The Union of
India and Ors., 2021-TIOL-2105-HC-MUM-CUS delivered on 26th
October, 2021 in support of the submission that respondent no.5 has no
jurisdiction to issue any notice of demand or even to carry out any
investigation in the assessment already completed by the respondent
no.3 at Mumbai.
4. Per-contra, Mr. Mishra, learned counsel for the respondent nos.4
and 5 assisted by Ms. Yadav, invited our attention to the order dated
21st December, 2021 passed by the Division Bench of this Court in Writ
Petition No. 9237 of 2021 in case of Fahim Ibrahim Waghoo v/s.
Union of India and Ors. and would submit that after adverting to the
judgment of Hon'ble Supreme Court in case of M/s. Canon India Pvt.
Ltd. (supra), Commissioner of Customs, Kandla v/s. M/s. Agarwal
Metals and Alloys. (supra) and judgment of this Court in case of
Kitchen Essentials and Ors. (supra) this Court has simpliciter granted
stay on the show-cause notice. He submits that the Revenue has filed a
review petition before the Hon'ble Supreme Court for reconsideration
of the decision of the Hon'ble Supreme Court in case of M/s. Canon
India Pvt. Ltd. (supra) and has also proposed to file review petition
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against the decision of this Court in case of Kitchen Essentials and
Ors. (supra). Learned counsel for the Revenue states that in this case
the respondent no.5 has not even issued show-cause notice.
5. Dr. Kantawala, learned counsel for the petitioner also relied upon
the judgment of this Court in case of Commissioner of Customs
(Export) v/s. Reliance Industries Ltd., 2021-TIOL-2330-HC-MUM-
CUS delivered on 9th December, 2021 and judgment of Delhi High
Court in case of M/s. Rani Enterprises v/s. Principal Commissioner of
Customs ICD, Patparganj and Ors., 2021-TIOL-2257-HC-DEL-CUS
delivered on 12th October, 2021 in support of his submission.
6. A perusal of the demand notices which are impugned in this writ
petition would clearly indicate that they are in the nature of demand
notices for recovery of Rs.2,64,21,996/-.
7. We are inclined to pass the order identical to the order passed by
the Division Bench of this Court on 21st December, 2021 in case of
Fahim Ibrahim Waghoo v/s. Union of India and Ors. In our prima-
facie view, the issue involved in this writ petition is no longer res-
integra in view of the decision of the Hon'ble Supreme Court in case
of M/s. Canon India Pvt. Ltd. (supra).
8. The respondent nos.4 and 5 and their subordinate Officers are
directed not to proceed with the impugned demand notices dated 18 th
August, 2021 and 30th August, 2021 annexed at Exhibits 'O' and 'Q'
respectively and not to proceed with the investigation proposed by
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them pursuant to the impugned demand notices against the petitioner in
respect of 13 vessels which are already assessed by the respondent no.3
at Mumbai till 31st March, 2022. The respondents are at liberty to
apply for vacating the order in the event of any order passed in their
favour by the Hon'ble Supreme Court in the review petition thereby
reviewing the judgment in case of M/s. Canon India Pvt. Ltd. (supra).
If the Review Petition is not decided on or before 31 st March, 2022, the
petitioner would be at liberty to apply for continuation of ad-interim
relief.
9. Place the matter on board for directions on 28th March, 2022.
[S. M. MODAK, J.] [R. D. DHANUKA, J.]
