IMPEX METAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The Court: The petitioner has come up before this Court by invoking the provisions contained an Article 226 of the Constitution of India challenging a show cause notice issued by the concerned respondents under Section 124 of the Customs Act, 1962. Mr. Chowdhury, learned advocate for the petitioner at the very outset submits that the writ petition challenging the show cause notice should not ordinarily be entertained unless the show cause notice is issued by an authority not competent to issue the same or it is issued by grossly suppressing the material fact or an abuse of the process. Bearing in mind the aforesaid proposition Mr. Chowdhury, submits that the show cause notice indicates that the adjudication is to be made by the Commissioner of Customs whereas the same is required to be done by the Assistant Commissioner of Customs or the Deputy Commissioner of Customs as provided under Section 74 of the Customs Act, 1962 and, therefore, the said notice is invalid, illegal and beyond the competence of the authority under the relevant statute. Secondly, he submits that the report prepared at the time of export is not reflected in the said show cause notice which amounts to gross suppression of material facts and on this ground the show cause notice is liable to be quashed and declared invalid.

(2.) Thirdly, he submits that before the order of final assessment is passed the authorities have no power to issue show cause notice as held in the case of A.S. Syndicate (Warehousing) P. Ltd. v. Commissioner of Customs (Port), 2011 267 ELT 469.

(3.) Lastly, he submits that Section 5 of sub-section (2) of the Customs Act empowers an officer of customs to exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of customs who is subordinate to him. What is tried to be contended is that the expression who is subordinate to him means an officer who is in immediate lower rank to such officer and not otherwise. In support of the aforesaid contention he relies upon the judgment of the Madras High Court in the case of Commissioner of Customs (Exports), Chennai v. Biomed Hitech Industries Ltd., 2010 256 ELT 511.