SUMAN N. AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule, by consent made returnable forthwith. Counsel appearing on behalf of the Respondents waives service on behalf of the Respondents. By consent, both the Petitions are taken up for hearing and final disposal. The Petitioner has sought to impugn in these proceedings under Article 226 the validity of (i) a notice to show cause dated 29 August 2005 issued by the Assistant Commissioner of Customs, Drawback Department; (ii) an order dated 20 September 2007 of the Commissioner of Customs (Export Promotion); and (iii) a notice of demand dated 1 November 2011 issued by the Assistant Commissioner of Customs, Special Recovery Cell. When the Petition came up for preliminary hearing on admission, an order was passed by this Court on 19 December 2011 recording the statement of the Petitioner that the challenge is being restricted only to the notice of demand dated 1 November 2011 (Exhibit C) and that the other reliefs in prayer (a) are not being pressed. The challenge before the Court is accordingly confined to the aforesaid limited extent.

(2.) A notice to show cause was issued on 29 August 2005 under Section 124 of the Customs Act 1962 to several entities and persons viz. (i) Nisum Exports & Finance Private Limited; (ii) Nisum Global Limited; (iii) Mehul Exports; (iv) Nirmal Agarwal and (v) Mayur Vakharia. The gravamen of the notice was a fraudulent claim of duty drawback. No notice to show cause was issued to the Petitioner. The Petitioner is a director of Nisum Global Limited. Mehul Exports is stated to be the proprietary concern of the spouse of the Petitioner. An adjudication took place in pursuance of which an order was passed by the Commissioner of Customs (Export Promotion) confirming a demand in the amount of Rs. 94.75 lacs against Nisum Exports and Finance Private Limited, in the amount of Rs. 53.05 lacs against Nisum Global Limited and Rs. 3.40 Crores against Mehul Exports. The adjudicatory order also imposed a fine in lieu of confiscation and personal penalties on the notices. No order of adjudication was passed against the Petitioner since admittedly the notice to show cause was not issued against her.

(3.) On 1 November 2011 a notice of demand was issued to the Petitioner amongst others stating that under the order of 20 September 2007 which had been forwarded for recovery by the Assistant Commissioner of Customs, Drawback Recovery Cell to the Assistant Commissioner of the Special Recovery Cell, an amount of Rs. 6.69 Crores was due together with interest. A certificate had been forwarded by the Assistant Commissioner of Customs, Drawback Recovery Cell under Section 142(1)(c)(ii) of the Customs Act 1962 read with Rule 6 of the Customs (Attachment of Property of Defaulters for Recovery of Customs Dues) Rules 1995 specifying that the amount was to be recovered from the Petitioner. The Petitioner has sought to challenge the notice of demand as being without jurisdiction.