JENNIS K.L. V. THE COMMISSIONER

WP(C)/13764/2021

AI Insights

The case involves a writ petition filed by Jennis K.L. against the Customs Department, challenging a show-cause notice related to the possession and dealing of gold ornaments made from smuggled gold. The petitioner argued that the Customs Department did not follow the standard operating procedure, which requires a 30-day period to respond to the show-cause notice and a personal hearing if the response is unsatisfactory. The court referenced a Bombay High Court judgment emphasizing the importance of the show-cause notice as a means to provide a fair hearing. However, the court found the petition to be premature as the show-cause notice had not yet culminated in a final order, and exceptional circumstances to challenge the notice were not demonstrated.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 732758 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-07-2021
• Assessment Year: misc
• Other Referred Cases: Riddhi Siddhi Collection Vs. Union of India
• Laws Referred To: Customs Act, 1962
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: A DINESH RAO; SREELAL WARRIOR
• Assessee Lawyers: RAJIT
• Keywords: Premature petition; Show cause notice; Smuggled gold; Standard Operating procedure
• Section: 111(m); 111(b); 124; 111(i); 121

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR MONDAY, THE 12TH DAY OF JULY 2021 / 21ST ASHADHA, 1943 WP(C) NO. 13764 OF 2021 PETITIONER: JENNIS K.L. AGED 53 YEARS S/O. LONAPPAN, KOTTALUKARAN HOUSE, NAMBIAR ROAD, P.O. PUTHUR, THRISSUR TALUK, THRISSUR DISTRICT-680 014 BY ADV RAJIT RESPONDENTS: 1 THE COMMISSIONER CUSTOMS PREVENTIVE COMMISSIONERATE, 5TH FLOOR, CATHOLIC CENTER, BROADWAY, COCHIN 682031. 2 JOINT COMMISSIONER OF CUSTOMS, CUSTOMS PREVENTIVE COMMISSIONERATE , 5TH FLOOR CATHOLIC CENTER, BROADWAY, COCHIN-682 031 3 OFFICE OF THE SUPERINTENDENT OF CUSTOMS, CUSTOMS PREVENTIVE UNIT, PALAKKAD-1-678 001. 4 INSPECTOR, RAILWAY PROTECTION FORCE/CRIME INTELLIGENCE WING(RPF/CIB) OTHER PRESENT: SRI.A.DINESH RAO,SC, SRI.SREELAL WARRIOR,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13764 OF 2021 2 JUDGMENT Heard the learned counsel for the petitioner. The learned counsel for the petitioner submits that as per the standard operating procedure, the respondent ought to have granted 30 days time to answer to the show-cause notice and if the reply to the show-cause notice is not found to be a satisfactory one, then the notice of personal hearing ought to have been granted to the petitioner. The learned counsel for the petitioner drew attention of this Court to the standard operating procedure at Ext.P21. He placed reliance on the judgment of the Bombay High Court reported in Riddhi Siddhi Collection Vs. Union of India reported in LAWS (BOM) 2019 7 423, wherein the impugned order was quashed and set aside with an observation that the object of show- cause notice is not an empty formality, but to grant sufficient opportunity of hearing to aggrieved persons. 2. I have considered the submissions so advanced and also perused the show-cause notice. The show-cause notice is given with an averment that the petitioner has acquired possession and is concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling and purchasing, so also is dealing with gold ornaments made out of smuggled gold. It is further averred that the petitioner has procured the WP(C) NO. 13764 OF 2021 3 gold ornaments from sale proceeds of the gold ornaments made out of smuggled gold. Contravention of provisions of Section 111(b), 111(m) and 111(i), apart from section 121 of the Customs Act is alleged. Penalty is also proposed and accordingly, the show-cause notice under Section 124 of the Customs Act, 1962 is issued to the petitioner asking him to showcause within 7 days. Similarly, the petitioner is also served with notice of personal hearing. These communications are at Exts.P20 and Ext.P22. 3. As the petitioner is challenging the show-cause notice in the instant petition, which is not even culminated into final order, the petition is premature. The show-cause notice can be challenged only in exceptional circumstances. This case does not seem to fall under any of the exceptional circumstances. The petitioner has right to appear before the concerned authority and to demonstrate the standard operating procedure, Ext.P21, to the authorities of the Customs Department, and to seek adjournment as per the procedure laid down in the standard operating procedure. In this view of the matter, the WP(C) is rejected, as premature with liberty to the petitioner to approach before the concerned Customs Authority to ventilate his grievances. Needless to mention that the WP(C) NO. 13764 OF 2021 4 petitioner shall be free to challenge the final order if any, before the appropriate Court or Forum, if the same is adverse to the interest of the petitioner. Nsd SD/- A.M.BADAR JUDGE WP(C) NO. 13764 OF 2021 5 APPENDIX OF WP(C) 13764/2021 PETITIONER ANNEXURE Exhibit P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE UNDER THE GST DATED 21.09.2017. Exhibit P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE UNDER THE KERALA VALUE ADDED TAX RULES 28.08.2009. Exhibit P11 A TRUE COPY OF THE DOCUMENT EVIDENCING THE OVERDRAFT FACILITY AND TERM LOAN FROM THE SOUTH INDIAN BANK DATED 20.03.2020. Exhibit P12 A TRUE COPY OF THE SANCTION ISSUED BY THE SOUTH INDIAN BANK DATED 08.06.2020. Exhibit P13 A TRUE COPY OF THE APPLICATION DATED 16.03.2021. Exhibit P14 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 29.03.2021 IN W.P.C NO. 8071/2021 Exhibit P15 A TRUE COPY OF THE ENDORSEMENT MADE BY THE 2ND RESPONDENT ON 30.03.2021. Exhibit P16 A TRUE COPY OF THE SEIZURE MEMO ISSUED BY THE 3RD RESPONDENT DATED 05.04.2021. Exhibit P17 A TRUE COPY OF THE ORDER DATED 09.04.2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P18 A TRUE COPY OF THE REPRESENTATION DATED 30.06.2021. Exhibit P19 A TRUE COPY OF THE ORDER DATED 30.03.2021 IN B.A. NO. 2684/2021 OF THIS HON'BLE COURT. Exhibit P20 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 30.06.2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P3 A TRUE COPY OF THE GST RETURNS FILED BY THE PETITIONER IN THE YEARS OF 2020-21 Exhibit P21 A TRUE COPY OF THE STANDING ORDER NO.22/2018 WP(C) NO. 13764 OF 2021 6 DATED 15.06.2018 LAYING DOWN THE STANDARD OPERATING PROCEDURE ISSUED BY THE DEPARTMENT. Exhibit P22 A TRUE COPY OF THE NOTICE DATED 05.07.2021. Exhibit P23 A TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO. 6368/2019 DATED 19.07.2019 OF BOMBAY HIGH COURT. Exhibit P4 TRUE COPY OF THE LATEST AUDITED BALANCE SHEET OF THE PETITIONERS ESTABLISHMENT DATED 31.03.2020. Exhibit P5 A TRUE COPY OF THE INCOME TAX RETURNS FILED BY THE PETITIONER FOR THE YEAR 2020-2021 DATED 14.01.2021. Exhibit P6 A TRUE COPY OF THE STOCK STATEMENT MAINTAINED BY THE ESTABLISHMENT OF THE PETITIONER DATED 11.03.2021. Exhibit P7 A TRUE COPY OF THE DOCUMENTS ISSUED BY THE JEWELLER GRT JEWELLERS EVIDENCING THE VALID IMPORT OF THE GOLD BULLION DATED 09.03.2021. Exhibit P8 A TRUE COPY OF THE DOCUMENTS EVIDENCING THE OWNERSHIP OF THE REFINED GOLD AND HANDING OVER OF THE GOLD ORNAMENTS BY SARAVANA STORES BRAMANDAMAAI PRIVATE LIMITED DATED 08.03.2021. Exhibit P9 A TRUE COPY OF THE ARREST MEMO ISSUED BY THE 3RD RESPONDENT DATED 18.03.2021. Exhibit P10 A TRUE COPY OF THE DETENTION MEMO ISSUED BY THE 3RD RESPONDENT DATED 12.03.2021. //true copy// PA to Judge "