M/S Mpm Gold House vs The Commissioner Of Customs ...
2021 Latest Caselaw 5672 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

    WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942

                        WP(C).No.4078 OF 2021(H)


PETITIONER/S:

                M/S MPM GOLD HOUSE,
                DOOR NO.71/81, PANAMKUKKATH HOUSE, POOCHIANIPADAM,
                REPRESENTED BY ITS MANAGING PARTNER P.M.MANIKANDAN
                AGED 48 YEARS, S/O. SRI MADHAVAN, R/O. PANAMKUKKATH
                HOUSE, POOCHIANIPADAM, URAKAM P.O.,
                THRISSUR-680 562.

                BY ADVS.
                SRI.P.A.AUGUSTIAN
                SMT.SWATHY E.S.

RESPONDENT/S:

      1         THE COMMISSIONER OF CUSTOMS (PREVENTIVE),
                5TH FLOOR, CATHOLIC CENTRE, BROADWAY,
                COCHIN-682 031.

      2         THE ASSISTANT COMMISSIONER OF CUSTOMS (PREVENTIVE)
                ST NAGAR, THRISSUR DIVISION,
                URAKAM P.O., THRISSUR-680 001.




                SC- SRI SREELAL N,WARRIER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4078 OF 2021

                                              2




                                      JUDGMENT

Dated this the 17th day of February 2021

Heard learned Counsel for the petitioner. The

petition is with the following prayers:

a) issue a writ in the nature of certiorari or any other appropriate writ, order or direction to call for the records of proceedings leading to Exhibit P13 SCN and quash the same.

b) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondent to release the gold covered under Exhibit P13 to petitioner.

c) Grant such other reliefs that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

2. Ext.P13 is a Show Cause Notice issued by the

respondent Customs Department to the petitioner under

Section 124 of the Customs Act, 1962, for

confiscation of the gold as well as for imposing WP(C).No.4078 OF 2021

penalty.

3. Learned Counsel for the petitioner drew my

attention to the impugned Show Cause Notice at

Ext.P13 and more particularly, to paragraph Nos.21,

27 and 41 of the same notice. With this, learned

Counsel for the petitioner argued that, in the

prolong enquiry for about one year, the respondent

department could not found out whether there is any

smuggler who has smuggled the gold. It is not

alleged that the petitioner is a smuggler of the

gold. Learned Counsel for the petitioner further

argued that there is no iota of evidence on record of

the respondent authority to show that the petitioner

has dealt with smuggled gold. There is no name of

smuggler who allegedly supplied gold to the

petitioner in the Show Cause Notice. As per

submission of learned Counsel for the petitioner, the

allegations made in the Show Cause Notice are vague

allegations without any corresponding data.

4. I have considered the submissions so advanced

and perused the Show Cause Notice at Ext.P13. WP(C).No.4078 OF 2021

5. The respondents are empowered to confiscate

the goods and impose penalty by issuing Show Cause

Notice after considering the representation as well

as on hearing the affected persons.

6. The Show Cause Notice at Ext.P13 contains an

allegation that the petitioner had carried gold

weighing 94 kgms during the period from 01.07.2019 to

15.10.2019 by train. The international value of the

gold is stated to be 1,21,01,80,608/-. The Show

Cause Notice names two carriers allegedly engaged by

the petitioner. Averment in the Show Cause Notice is

to the effect that the petitioner has engaged in the

illegal act of bringing gold received from different

jewellers and shop persons without documents from

Chennai and other parts of Tamil Nadu, through his

five regular carrier passengers. It is further

averred that the petitioner is engaged in illegal

transaction of smuggled gold in huge quantity under

the shadow of gold manufacturing and he has devised a

modus operandi to deal in smuggled gold by engaging

regular carrier passengers. According to the WP(C).No.4078 OF 2021

respondent department, the petitioner has avoided all

sort of accounting practices by keeping the

transactions strictly to "gold to gold" basis in

smuggled gold and thereby evading all duties and

applicable taxes. It is the case of the respondent

department that the petitioner is engaged in carrying

the smuggled gold with the form changed under the

shadow of jewellery manufacturing and he seems to be

a part of well established smuggling syndicates.

There are other ground enumerated in the Show Cause

Notice issued to the petitioner asking him to show

cause as to why the goods should not be confiscated

and penalty should not be imposed. The Show Cause

Notice further elaborates the legal provisions under

which the action is sought to be taken against the

petitioner, for which an opportunity of hearing is

being accorded to him in pursuant to the provisions

of Section 124 of the Customs Act, 1962.

7. In this view of the matter, the petition

itself is premature. It is just at the stage of show

cause. Petitioner is free to advance all his WP(C).No.4078 OF 2021

contentions before the competent authority of the

respondent Customs Department. In this view of the

matter, I am of the considered opinion that the

petition as framed and filed, challenging the show

cause notice, cannot be entertained. The petition is

therefore dismissed. Needless to mention that the

petitioner is free to raise all his contentions,

which is sought to be raised in the instant petition,

before the concerned authority of respondent

department.

Accordingly, the writ petition is dismissed.

Sd/-

A.M.BADAR

JUDGE

uu

17.2.2021 WP(C).No.4078 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPELLATE ORDER DATED 30.5.16 IN KVAT APPEAL NO.KCATA 485/2016.

EXHIBIT P2 TRUE COPY OF THE GST REGISTRATION DATED 10.7.17.

EXHIBIT P3 TRUE COPY OF THE VOUCHER DATED 14.10.2019.

EXHIBIT P4 TRUE COPY OF THE MAHAZAR DATED 16.10.19.

EXHIBIT P5 TRUE COPY OF THE ASSAY CERTIFICATE DATED 17.10.19.

EXHIBIT P6 TRUE COPY OF THE LETTER DATED 1.11.19.

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 25.10.19.

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 30.10.19 WITH COPY OF THE TAX INVOICE AND GOLD DELIVERY CHALLAN ISSUED BY INDIAN OVERSEAS BANK.

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 4.11.19.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 29.9.2020 IN CMP NO.1847/2020.

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 29.9.2020 RETRACTING THE STATEMENT.

EXHIBIT P12 TRUE COPY OF THE LETTER DATED 26.10.2020 RETRACTING THE STATEMENT.

EXHIBIT P13 TRUE COPY OF THE SCN DATED 24.11.2020.

EXHIBIT P14 TRUE COPY OF THE LETTER DATED 12.12.2020.

EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 15.12.2020 IN WPC NO.24510 OF 2020.

EXHIBIT P16 TRUE COPY OF THE NOTIFICATION F.NO.450/61/2020-CUS. IV (PART-1) DATED 30.9.2020.