Calcutta High Court (Appellete Side)
M/S. Emergy Marketing Private ... vs The Principal Commissioner Of ... on 17 February, 2023
Item No.6.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 17.02.2023
DELIVERED ON: 17.02.2023
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
MAT 2025 of 2022
With
I.A. No.CAN 1 of 2022
M/s. Emergy Marketing Private Limited.
Vs.
The Principal Commissioner of Customs (Port) & ors.
Appearance:-
Mr. Arnab Chakraborty,
Mr. Aniket Chaudhury .... for the appellant.
Mr. Kaushik Dey,
Mr. Tapan Bhanja ...... for the respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra Court appeal by the writ petitioner is directed
against the order dated 8th December, 2022 passed in W.P.A.
No.26160 of 2022. The writ petition was dismissed on the ground
that it has been filed challenging a show cause notice and that
the appellant should face the adjudication proceedings initiated
by the Assistant Commissioner of Customs Appraising Refund
Section (Port) Customs House, Kolkata pursuant to the show cause
notice dated 12th October, 2022. Though at the first blush, it
may appear that the writ petition was filed against a show cause
notice but on a closer scrutiny of the facts, we find that the
impugned show cause notice itself is without jurisdiction.
This conclusion of us has been arrived at by taking note of the
fact inasmuch as the appellant has succeeded before the first
appellate authority in the adjudication proceeding and against
such an order, the revenue has preferred appeal before the
Tribunal.
2. In the meantime, the appellant sought for refund of the
pre-deposited amount, which had been refunded to the appellant
by taking note of the relevant circulars issued by the Central
Board. In such circumstances, it will not be open to the
Assistant Commissioner of Customs to initiate fresh proceedings
that too under Section 28(1) of the Customs Act, 1962 and call
upon the appellant to explain as to why the refunded amount
should not be recovered.
3. If the impugned show cause notice is allowed to be
proceeded further, it would tantamount to allowing the appeal
filed by the revenue, which is now pending before the Tribunal.
It is submitted by Mr. Koushik Dey, learned senior standing
counsel appearing for the revenue that the revenue has also
moved for an order of stay before the Learned Tribunal. Even
assuming that the learned Tribunal had passed any interim order,
that would not empower the department to initiate recovery
proceedings for the amount of refund already sanctioned and paid
to the appellant.
4. This also would indirectly mean that the department would
be succeeding in their appeal before the Tribunal by virtue of
an interim order, if any, granted, which is impermissible in
law.
5. Therefore, we hold that the show cause notice dated 12th
October, 2022 is without jurisdiction at this given point of
time. In the result, the appeal is allowed and the show cause
notice dated 12th October, 2022 is quashed.
6. We make it clear that this order will not stand in the way
of the department to initiate appropriate action in accordance
with law subject to the outcome of the appeal filed by the
department, which is now pending before the learned Tribunal.
7. There shall be no order as to costs.
8. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
