[Cites 6, Cited by 0]
Calcutta High Court
The Ananda Bag Tea Company Limited vs Union Of India And Ors on 10 December, 2025
OD-2
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/795/2025
THE ANANDA BAG TEA COMPANY LIMITED
VS
UNION OF INDIA AND ORS
BEFORE:
The Hon'ble JUSTICE OM NARAYAN RAI
Date :December 10, 2025.
Appearance:
Ms. Micky Chowdhary, Adv.
Mr. B.N. Pal, Adv.
...For the Petitioner
Mr. Kaushik Dey, Adv.
Mr. Anurag Roy, Adv.
...For the Respondents Customs Authorities
Mr. Smarajit Roy Chowdhury, Adv.
Mr. Amit Sharma, Adv.
...For Union of India
The Court: The petitioner assails a notice of show cause dated 20 th
August, 2025 issued by the Additional Commissioner, Appraising Group - 1
(Port), Custom House, Kolkata, whereby the petitioner has been called upon
to explain as to why an action as indicated in the said notice including
imposition of penalty would not be taken against the petitioner for the
petitioner not fulfilling its export obligation.
The relevant facts of the case, as would be evident from the writ
petition, are that petitioner is a manufacturer exporter. On August 25, 2020,
the petitioner had applied to the respondent authorities for issuance of
Export Obligation Discharge Certificate (EODC) against fulfilment of Export
Obligation. The respondents sought for some further details by a letter dated
September 16, 2020 which were supplied by the petitioner under the cover
of a letter dated October 22, 2020. On November 23, 2020 the petitioner
wrote a letter to the respondents thereby intimating the addressee
respondent (Dy./ Asst. Commissioner of Customs) that the petitioner's
clearing agent had at the time of filling up of the details required to be given
in shipping bills, missed to enter the authorization number along with
imported quantity used in respect of two shipping bills. By the said letter,
the petitioner requested the addressee authority to take necessary action so
that EODC could be issued in favour of the petitioner. However, nothing was
done and the petitioner's request for post exportation amendment remained
pending. The petitioner followed up the matter but to no avail. Ultimately on
March 21, 2024 a letter was issued to the petitioner by the Superintendent
of the Customs whereby the petitioner was informed that out of the two
shipping bills in respect whereof amendment had been requested one had
been put up for approval before the competent authority. The petitioner
immediately responded to the same and requested the authority concerned
to put up before the competent authority the second shipping bill also for
approval. The respondents did not communicate anything thereafter on the
said subject. While the petitioner's request for post exportation amendment
thus remained pending, a notice to show cause, dated August 20, 2025 was
issued to the petitioner. Hence, the writ petition.
Ms. Micky Chowdhury, Learned Advocate appearing for the petitioner
submits that the impugned notice to show cause is actually the result of
failure on the part of the respondents not take a decision on the petitioner's
application for Post Exportation Amendment made to the respondents on
23rd November, 2020. It is submitted that whenalmostthree years passed
without the respondents taking any decision on the petitioner's
representation/application dated 23rd November, 2020, the petitioner
followed up by another letter dated 21st November, 2023 which was then the
responded to by a letter dated 21st March, 2024 thereby intimating the
petitioner thus:
"in one of the Shipping bill bearing no. 8613724 dt
29.11.2019, HSN code of the item is shown as 09024090
whereas Advance Authorization license bearing no 210209079
covers that item under ITCHS code 09024020."
In view of the above, it is informed that the mentioned Shipping
bill bearing no. 8613724 dt 29.11.2019 cannot be considered to
be covered under Advance Authorization license bearing no
210209079 dated 29.03.2019. However, the other Shipping Bill
bearing no 9326743 dt 30.12.2019 is being put up to the higher
authority for perusal and approval as requested by you."
It is submitted that upon receipt of the said letter, the petitioner
issued another letter dated 2nd April, 2024 offering the requisite clarification
and explanation to the respondent and requesting the respondent to put up
both the shipping bills instead of one for approval of amendment inasmuch
as amendment of both the bills had been sought for by the petitioner by its
application dated November 23, 2020.
It is submitted that the show - cause notice could not have been
issued by the respondents while keeping the petitioner's request for
amendment pending.
Ms. Chowdhary, further submits that since the petitioner had the
intention of discharging its export obligation and had taken due steps, as
would be appearing from the initial applications seeking discharge of the
petitioner to export obligation and the follow up representations, the
petitioner could not have been issued the show cause notice. In support of
her contention that a bonafide exporter should not be harassed and
penalised for an inadvertent mistake she relied upon on a judgment of
Hon'ble Supreme Court in the case ofCommissioner of Customs Vs. N.C.
John & Sons Pvt. Ltd. reported at2022 (380) E.L.T. 241 (S.C.).
She further relied on the notification dated 31st March, 2022 issued by
the Central Board of Indirect Taxes and Customs to demonstrate that the
authority who has issued the notice to show cause is not competent to
decide the petitioner application seeking for post exportation amendment.
It is further submitted that in terms of the "Shipping Bill (Post Export
Conversion in relation to Instrument Based Scheme) Regulations, 2022" it
was obligatory on the part of the respondent customs authority to take a
decision on the petitioner's the application seeking discharge obligation
within a period of 30 days from the date of which it was filed.
Relying on the judgment Hon'ble Supreme Court judgment in the case
of Shah NanjiNagsi Exports Pvt. Ltd. Vs. Union of India and Others.
Reported in (2025) 151 GSTR 779 (SC), it is submitted that a genuine
exporter should not be driven to needless litigation on account of
inadvertent procedural lapses which are rectified in accordance with law.
Mr. Kaushik Dey, Learned Advocate for the respondents Customs
Authorities submitted that the petitioner could have easily obviated the
situation by answering to the pre-show cause consultation notice issued to
the petitioner on April 28, 2025 (Annexure-P/21, Page no. 175 of the writ
petition). It is further submitted that the petitioner can in any event
approach the show cause issuing authority and place whatever the
petitioner has to place in response to the show cause. Relying on a judgment
of the Hon'ble Supreme Court in the case of Special Director and Another
Vs. Mohd. Ghulam Ghouse And Another reported in 2004 Supreme
Court Cases (Cri) 826, Mr. Dey submits that a writ Court should not
interfere witha show cause notice under Article 226 of the Constitution of
India.
In reply to Mr. Dey's submission, it is submitted by Ms. Chaowdhary
that the pre-show cause consultation notice which was served upon the
petitioner was/isnon est inasmuch as the Pre Notice Notice Consultation
Regulations, 2018 provide for issuance of such notice only in cases where a
notice to show cause under Section 28 of the Customs Act is contemplated.
It is asserted that the present notice being under Section 124 of the
Customs Act, the principal notice consultation could not have been issued.
Heard the Learned Advocates appearing for the respective parties and
considered the material on record.
It does not appear to be in dispute that the petitioner had as far back
as on 25th August, 2020 written to the Additional DGFT requesting for
issuance of discharge certificate against fulfilment of export obligation
against advance authorisation and that by a letter dated November 23, 2020
the petitioner has requested for post exportation amendment of two shipping
bills and for has repeated its request for issuance of EODC.
Since no step was taken in furtherance of the request made by the
petitioner for three years, the petitioner wrote another letter dated November
21, 2023 that (Annexure-P/16, Page-110) repeating its request. It was only
thereafter that by a letter dated March 21, 2024 the petitioner was informed
that one of the shipping bills was being put up by the authorities for
consideration citing certain issues with the other shipping bill. The
petitioner responded to the said letter too by providing the requisite
clarification as regards the allegedly problem clad shipping bill and
requestedthe respondent for putting up both the bills before the Competent
Authority for approval.
There has been no communication from the respondent since then on
the subject since then but in the meantime a notice to show cause has been
issued to the petitioner on August 20, 2025 basing the same primarily on
the petitioner's failure to discharge its export obligation. The petitioner's
contention that if the petitioner's application for amendment made to the
authorities on November 23, 2020 had been appropriately considered and
appropriate order had been passed thereby issuing EODC, the basis to issue
show cause notice would not have existed cannot be lightly brushed aside.
It is settled that a notice to show cause does not give rise to cause of
action and as such, a writ Court should be loath to interfere at the stage of
issuance of notice to show cause unless the same has been issued by an
authority wholly without jurisdiction or the said notice is tainted with mala
fides.
In the present case it is palpable that the show cause notice may not
have seen the light of the day if the petitioner's application dated 23rd
November, 2020 had been favourably considered. It has been observed that
the Shipping Bill (Post Export Conversion in relation to Instrument Based
Scheme) Regulations, 2022 requires the relevant authorities to consider and
dispose of the such application within a period of 30 days.
Even otherwise i.e. even without taking into considering the provisions
of the Shipping Bill (Post Export Conversion in relation to Instrument Based
Scheme) Regulations, 2022 the application filed by the petitioner for post
exportation amendment could not have been kept pending for a period as
long as five yearsthereby rendering the petitioner vulnerable to penal
proceedings.
In view of the delay in taking decision on the said application of the
petitioner, this Court finds good grounds to interfere at this stage in order to
balance equities without interfering with the show cause notice impugned
herein.
Accordingly, this Court directs the respondent/Customs Authority to
consider the disposed of the petitioner's application dated November 23,
2020 within a period of two weeks from date of communication of this order
upon affording an opportunity of hearing of the petitioner. Needless to
mention that the decision taken by such authority on such application shall
be a reasoned one and shall be communicated to the petitioner within a
week after taking of such decision.
The petitioner shall be entitled to file a reply to the notice to show
cause within two weeks from the date of communication of the order or the
decision taken by the authority on the petitioner's
representation/application dated 23rd November, 2020.
The appropriate authority who is to decide the proceeding initiated by
the impugned show cause notice shall thereafter proceed to take appropriate
decision in accordance with law upon considering the application made by
the petitioner in terms of this order.
It is clarified that this Court has not gone into any merits of the
matter and the authority competent to adjudicate and take final decision on
the proceeding initiated on the basis of the impugned show cause notice
shall be free to take decision in accordance with law and this order shall not
be treated as a mandate to pass any order in favour of the petitioner or
against the petitioner.The petitioner shall communicate this order along
with application dated 23rd November, 2020 and all the subsequent
communications exchanged between the petitioner and the respondent via
e-mail to the authority concerned.
WPO/795/2025 stands disposed of with the aforesaid directions.
(OM NARAYAN RAI, J.)
DB/S. Mandi
