Kirit Shrimankar Versus The Commissioner, CGST & Central Excise & Another
Customs
2018 (7) TMI 627 – MADHYA PRADESH HIGH COURT – 2018 (362) E.L.T. 385 (M. P.)
MADHYA PRADESH HIGH COURT – HC
Dated:- 5-7-2018
W. P. No. 14380\/2018
Customs
Hon'ble Mr. Justice P.K. Jaiswal And Hon'ble Mr. Justice S.K. Awasthi
\nShri Abhinav P. Dhanodkar, learned counsel for the petitioner
\nORDER
\nPer P.K. Jaiswal, J.
\nBy this writ petition under Article 226 of the Constitution of India, the petitioner is challenging the Circular No.276\/104\/2016-CX.8A dated 3\/01\/2017 issued by the Central Board of Excise & Customs directing that the show cause notices, adjudication of which was kept in call book pursuant to the earlier Circulars dated 29\/06\/2016 and 28\/12\/2016 shall be taken out and be adjudicated in accordance with law.
\n2. According to the writ petitioner, the earlier Circulars of 2016 which thus stand withdrawn, were on the issue of competency of officers of Directorate of Rev<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ssued by ADG, DRI proposing demand of duty from the petitioner. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n he ratio of the judgment of the Apex Court further precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. In Paper Products Ltd.(supra), the Apex Court has held that so far as the Department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n has been followed in Swiber Offshore Constructions Pvt. Ltd. v. CC, Kandla[2014 (301) E.L.T.119(Tri). The petitioner claims that the adjudicating proceedings are pending and final order is yet to be passed, we cannot presume merely on the basis of such unfounded apprehension that the adjudicating authority would not comply with the mandatory statutory requirement under Section 138B of the Customs Act, 1962, despite binding precedents in this regard in J.K. Cigarettes Ltd. v. Commissioner [2009 (242) E.L.T.189(Del.), Slotco Steel Products Pvt. Ltd. v. Commissioner [2012(281) E.L.T.193(Del.), Basudev Garg v. Commissioner [2013(294) E.L.T. 353(Del.), CCE, Meerut-1 v. Parmarth Iron Pvt. Ltd. [2010 (260) E.L.T. 514 (All.) and Swiber Offshore Constructions Pvt. Ltd.(Supra) on the applicability of the provisions of Section 138 B of Customs Act, 1962\/Section 9D of Central Excise Act, 1944 and also on the order of examination as per the judgment of the Apex Court in the case of Sukhwant Singh v<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Kirit Shrimankar Versus The Commissioner, CGST & Central Excise & AnotherCustoms2018 (7) TMI 627 – MADHYA PRADESH HIGH COURT – 2018 (362) E.L.T. 385 (M. P.)MADHYA PRADESH HIGH COURT – HCDated:- 5-7-2018W. P. No. 14380\/2018 CustomsHon'ble Mr. Justice P.K. Jaiswal And Hon'ble Mr. Justice S.K. Awasthi Shri Abhinav P. Dhanodkar, learned counsel for the petitioner … Continue reading “Kirit Shrimankar Versus The Commissioner, CGST & Central Excise & Another”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-12557","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12557","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12557"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12557\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12557"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12557"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12557"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n4. As per Annexure-P\/1, the Circular impugned has been issued pursuant to legal opinion taken from the Solicitor General of India. Even otherwise, when operation of the judgment circumscribing the jurisdiction\/competency of a quasi judicial authority is stayed by the Apex Court, there cannot be any option left with the authorities to exercise such jurisdiction and to proceed with adjudication. It appears that merely since issue of competence of officers of Directorate of revenue Intelligence is pending for final order before the Apex Court, to avoid adjudication, the petitioner has challenged the Circular dated 3\/01\/2017. For every issue, some or the other case would be pending in High Court or the Hon'ble Supreme Court. The same cannot cause fetter in exercise of quasi judicial or judicial functions of the authorities or lower courts. If merely for this reason the adjudication is kept in call book, there would be gra<\/p>\n
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\n6. The claim of the petitioner that therefore several similar cases, wherein Show Cause Notices have been issued by the DRI Officers, have been placed in call book by various adjudicating authorities all over India is not supported by any favourable data. In any event, the show cause notices which were kept in the Call Book, in view of the said Board instructions will have to be taken out of the Call Book immediately and the adjudication of such show cause notices are to be proceeded in accordance with law. It would cause grave harm to the petitioner for noncompliance of instructions iss<\/p>\n
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