Madras High Court
M/S.Sri Balaganesan Spinners vs The Joint Commissioner Of Customs on 31 March, 2022
W.P.(MD) Nos.7447 to 7450 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On 19.04.2022
Pronounced On 09.06.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.(MD) Nos.7447 to 7450 of 2022
and
W.M.P. (MD) Nos.5652 to 5655 of 2022
M/s.Sri Balaganesan Spinners,
Represented by its Managing Partner,
K.Ravichandran,
S.No.36/1, 34/1, 36/2,
N.Shanmugasundarapuram,
Srivilliputur, Virudhnagar -626125. ... Petitioner in
W.P.(MD) No.7447/22
K.Ravichandran ... Petitioner in
W.P.(MD) No.7448/22
K.Seenivasagam ... Petitioner in
W.P.(MD) No.7449/22
Kamaraj S.M. ... Petitioner in
W.P.(MD) No.7450/22
Vs.
1.The Joint Commissioner of Customs,
Custom House, New Harbour Estate,
Tuticorin – 628 004.
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W.P.(MD) Nos.7447 to 7450 of 2022
2.The Additional Director,
Directorate of Revenue Intelligence,
27, G.N.Chetty Road, T.Nagar,
Chennai – 600 017. ... Respondents in
all W.Ps.
Common Prayer:- Writ Petitions filed under Article 226 of the
Constitution of India, for issuance of a Writ of Certiorari, to call for the
records and quash the proceedings pertaining to the Order-in-Original
No.18/2022 (Denovo) dated 31.03.2022 passed by the first respondent
from C.No.VIII/10/38/2017-ADJN and
F.No.DRI/CZU/TTN/VIII/48/15/INT-I/2016 confirming the duty demand
and imposing penalties on the petitioner.
For Petitioner : M/s.Pramila V
in all W.Ps.
For Respondents : Mr.P.Aravindan
in all W.Ps. Senior Standing Counsel
COMMON ORDER
This is a third round of litigation before this Court. The petitioner
had been issued with a Show Cause Notice, dated 14.11.2017. The
petitioner had thereafter suffered an Order-in-Original No.11/2020, dated
01.12.2020. The petitioner had challenged the same before this Court in
W.P.(MD)Nos.855, 859, 864 and 865 of 2021. The said Writ Petitions
were allowed by this Court, by its common order dated 19.02.2021, with
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W.P.(MD) Nos.7447 to 7450 of 2022
the following observation:-
''4.The learned standing counsel drew my
attention to the order dated 30.01.2019 made in
WA(MD)No.1469 of 2018 (S.Rajendran vs. The Joint
Commissioner of Customs (Preventive), Trichy. The
said decision may not have any application to the
case on hand, because, in the said case, the noticee
wanted to cross examine the co-noticee. Of course,
the said decision may come in the way of granting
permission to cause production of co-noticees for
cross-examination. Of course, two of the petitioners
wanted to cross-examine co-noticees. But their
request was not confined to that. The petitioners
have named the persons whom they wanted to cross
examine. At Page No.68 of the typed set of papers,
the following names have been set out:
''Shri.R.Ramesh, Finance Manager cum
Authorised Signatory, M/s.Avaneetha
Textiles, Coimbatore;
Smt.Uma Sekar, Managing Director,
M/s.Avaneetha Textiles;
Shri.S.Govindaraj, Proprietor, M/s.Swamy
Enterprises, Coimbatore;
Shri.T.Subhash, Managing Partner,
M/s.Thirumalaiiyes Traders, Coimbatore;
Shri.S.M.Kamaraj, Chartered Accountant,
and
Shri.Esaki, Proprietor, M/s.Synergy Business
Associates, Rajapalayam.''
5.There is no dispute that the adjudicating
authority has chosen to rely on the statements of
these persons. The Hon'ble Supreme Court in a
recent decision reported in (2020) 10 SCC 529
(I.C.D.S. Ltd. vs. Commissioner of Income Tax) held
that if the department wants to rely on the evidence
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W.P.(MD) Nos.7447 to 7450 of 2022
of certain witnesses, it may be necessary to provide
opportunity of cross-examination of these witnesses
to the noticee. This is a self-evident proposition for
which no authority is needed. The said decision of
the Hon'ble Supreme Court squarely applies to the
case on hand.
6.Since this basic right of the petitioners has
been denied, the order impugned in these writ
petitions will have to be necessarily set aside. It is
accordingly set aside. The writ petitions are
allowed. The matter is remitted to the file of the
first respondent. The first respondent will afford an
opportunity to the petitioners to cross examine the
witnesses whose statements are relied on by the
authority. Of course, the petitioners cannot demand
that the respondent should facilitate cross-
examination of co-noticees. That would be the look-
out of the petitioners themselves.
7.These writ petitions are allowed. No costs.
Consequently, connected miscellaneous petitions are
closed.''
2. After the above said common order dated 19.02.2021 was
passed by this Court, the Hon'ble Supreme Court rendered its decision in
Canon India Private Limited Vs. Commissioner of Customs, 202
(376) E.L.T. 3(S.C.). Under these circumstances, the petitioner filed
W.P. (MD) Nos.1644 to 1647 of 2022, wherein the petitioner challenged
the Show Cause Notice dated 14.11.2017, issued by the Officers of the
Directorate of Revenue Intelligence.
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W.P.(MD) Nos.7447 to 7450 of 2022
3. The learned counsel for the petitioner submits that the above
Writ Petitions were directed to be tagged along with the connected batch
of Writ Petitions pending before the Principal Seat at Chennai vide order
dated 31.01.2022. However, the above mentioned Writ Petitions were
not transferred to the Principal Seat at Chennai for being tagged and
being heard with the batch of Writ Petitions reserved on 03.02.2022.
Therefore, the petitioner was not heard when the orders were reserved in
the connected cases at the Principal Seat at Chennai,
4. It is submitted that meanwhile, the first respondent had passed
the impugned Order-in-Original No.18/2022, dated 31.03.2022. The
petitioner was given an opportunity to cross-examine the witness in terms
of the order of this Court, dated 19.02.2021 in W.P.(MD) Nos.855, 859,
864 and 865 of 2021. However, since the petitioner had challenged the
Show Cause Notice in W.P. (MD) Nos.1644 to 1647 of 2022, the
petitioner did not participate in the said proceedings and thus, the
impugned order came to be passed.
5. The learned Senior Standing Counsel for the respondents
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W.P.(MD) Nos.7447 to 7450 of 2022
submits that the Writ Petitions are devoid of merits and therefore, the
petitioner has an alternate remedy. That apart, it is submitted that the
Hon'ble Supreme Court in Canon India Private Limited cited supra has
now been overcome by way of amendment to Section 28 of the Customs
Act, 1962 and therefore, on this score also, the Writ Petitions are liable to
be dismissed.
6. By way of rejoinder, the learned counsel for the petitioner
submits that the amendment made to Section 28 Customs Act, 1962 by
way of Finance Act, 2022 is now the subject matter of challenge before
several Courts and notice has also been ordered by the Delhi High Court.
7. Heard the learned counsel for the petitioner and the learned
Senior Standing Counsel for the respondents.
8. I have already passed a detailed common order in a batch of
Writ Petitions in the case of M/s.N.C.Alexender Vs. The Commissioner
of Customs, Customs House, Chennai in W.P.Nos.33099 of 2015 and
etc., on 09.06.2022 (i.e. Today) in the Principal Seat at Chennai after
considering the amendment to Section 28 of the Customs Act, 1962 vide
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W.P.(MD) Nos.7447 to 7450 of 2022
Finance Act, 2022 and validations in Section 97 of the Finance Act,
2022. Section 97 of the Finance Act, 2022 reads as under:-
Validation of certain actions taken under Customs
Act.
97. Notwithstanding anything contained in any
judgment, decree or order of any court, tribunal, or
other authority, or in the provisions of the Customs Act,
1962 (hereinafter referred to as the Customs Act),––
(i) anything done or any duty performed or any
action taken or purported to have been taken or
done under Chapters V, VAA, VI, IX, X, XI, XII,
XIIA, XIII, XIV, XVI and XVII of the Customs
Act, as it stood prior to its amendment by this Act,
shall be deemed to have been validly done or
performed or taken; Validation of certain actions
taken under Customs Act.
(ii) any notification issued under the Customs Act
for appointing or assigning functions to any
officer shall be deemed to have been validly
issued for all purposes, including for the purposes
of section 6;
(iii) for the purposes of this section, sections 2, 3
and 5 of the Customs Act, as amended by this Act,
shall have and shall always be deemed to have
effect for all purposes as if the provisions of the
Customs Act, as amended by this Act, had been in
force at all material times.
Explanation.–– For the purposes of this section, it is
hereby clarified that any proceeding arising out of any
action taken under this section and pending on the date
of commencement of this Act shall be disposed of in
accordance with the provisions of the Customs Act, as
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amended by the Act”.
9. I have also pointed out in the above case that when the order
was passed by the Hon'ble Supreme Court in Canon India Private
Limited cited supra, the amendment to Section 17 of the Customs Act,
1962 w.e.f. 08.04.2011 vide Section 38 of the Finance Act, 2011 was not
brought to its attention and that the Officers of the Directorate of
Revenue Intelligence (DRI), on deputation to Directorate of Revenue
Intelligence (DRI) from the Customs and Central Excise Department and
other Departments, had already been recognized as “Officers of
Customs” under Notification issued under Section 4(1) of the Customs
Act, 1962 which fact was also not brought to the attention of the Hon'ble
Supreme Court.
10. Therefore, the challenge to the impugned proceedings on the
strength of the decision of the Hon'ble Supreme Court in Canon India
Private Limited cited supra cannot be countenanced. Further,
considering the fact that the petitioner had already filed Writ Petitions on
two other occasion and that in the last occasion, i.e. in W.P. (MD) Nos.
855, 859, 864 and 865 of 2021, a common order dated 19.02.2021 came
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to be passed by this Court allowing these Writ Petitions, there is no
merits in these Writ Petitions.
11. However, since the impugned order has been passed during the
pendency of the W.P.(MD) Nos.1644 to 1647 of 2022 and that the
petitioner could not avail an opportunity of cross examining the
witnesses whose statements were relied on, I am inclined to quash the
impugned order and remit the case back to the respondents to pass a
speaking order preferably within a period of six months from the date of
receipt of a copy of this order subject to the petitioner co-operating with
the respondents.
12. If the petitioner fails to co-operate with the respondents, the
respondents are at liberty to pass a fresh order denovo based on the
available records, on merits, by reiterating the content of the impugned
order which otherwise stands quashed by this order.
13. As far as the connected Writ Petitions in W.P. (MD) Nos.1644
to 1647 of 2022 which were directed to be transferred for being heard
along with the above batch of Writ Petitions in M/s.N.C.Alexender Vs.
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The Commissioner of Customs, Customs House, Chennai, in
W.P.Nos.33099 of 2015 and etc. is concerned, the said Writ Petitions
will have to be dismissed as infructuous. However, since files of the said
Writ Petitions are not available before me, I am not passing any separate
orders in the said Writ Petitions.
14. These Writ Petitions are disposed with the above observations
No cost. Consequently, connected Miscellaneous Petitions are closed.
09.06.2022
Index : Yes/No
jen / smn2
To
1.The Joint Commissioner of Customs,
Custom House, New Harbour Estate,
Tuticorin – 628 004.
2.The Additional Director,
Directorate of Revenue Intelligence,
27, G.N.Chetty Road, T.Nagar,
Chennai – 600 017.
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W.P.(MD) Nos.7447 to 7450 of 2022
C.SARAVANAN, J.
jen / smn2
Common Order made in
W.P.(MD) Nos.7447 to 7450 of 2022
and
W.M.P. (MD) Nos.5652 to 5655 of 2022
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W.P.(MD) Nos.7447 to 7450 of 2022
09.06.2022
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