Asim Kumar Mondal, J.@mdashThis is an application under Article 226 of the Constitution of India. The petitioner Plastolene Polymers Private Limited has filed the application against the opposite party/respondents Union of India and others challenging the illegality of the purported show cause notice dated July 22, 2004, issued to the petitioner by the Deputy Commissioner of Customer (F.S.E.Z.) calling upon the petitioner to show cause as to why the petitioner should not be made liable for anti dumping duty chargeable in respect of the goods sold by the petitioner from Palta Special Economic Zone to third parties under domestic tariff area. The case of the petitioner is that the petitioner''s Company has been licensed as private bond warehousing cum-in-bond manufacturing Unit under Sections 58 and 65 of the Customers Act, 1962, a unit at Falta Special Economic Zone since 2000. The said zone was also declared as a warehousing station u/s 9 of the Customs Act by the Central Government. The petitioner in usual course of business imported various items for the purpose of using the same for its manufacturing purpose. However, during manufacturing certain imported materials were let out and could not be used for manufacturing in the said unit of the petitioner. The petitioner made several applications before the Development Commissioner, Falta Special Economic Zone seeking permission of sale there of to the indigenous buyers under domestic tariff, so that the said goods may be purchased by the third party against payment a duty of custom as applicable. The Development Commissioner duly granted permission for Domestic Tariffs are sale of the said stock. The petitioner in terms of the said permission sold and delivered its stock to Enfield Industries Limited, of 9, Vivekananda Road, Kolkata 7, under Domestic Tariff Area. The said goods were cleared by the Enfield Industries Limited upon payment of duty of customs as determined by the Authorities. The petitioner was served a notice to show cause on July 22, 2004, by the Assistant Commissioner of Customs, Falta, Special Economic Zone as to why anti damping duty were not levied on the goods, sold by the petitioner to Enfield Industries Limited and also to show cause as to why the petitioner should not be liable for the duty short levied and made liable to make payment of interest. Petitioner has taken the plea that under the provisions of Customs Act a person is liable to pay the duty seeking clearance of goods from warehousing by filing a De-bonding Bill of Entry for home consumption. The Customs Authorities termed clearance of goods sold by the petitioner under Domestic Tariff Area in favour of Enfield Industries Limited, accordingly, the liable to pay duty with regard to such goods was of Enfield Industries Limited. In the event of any duty not levied on such goods cleared in favour of the Enfield Industries Limited, the petitioner can not be held liable for the same.
2. Being aggrieved by and dissatisfied with the arbitrary, unreasonable wrongful and illegal action of the respondents, complained of, the petitioner preferred this application on the grounds that the action of the respondents in issuing the show cause notice dated July 22, 2004 and in seeking to make the petitioner liable for the duty short levied and interest thereon for the goods cleared in favour of the Enfield Industries Limited, is arbitrary, unreasonable wrongful illegal and violative of Article 14 of the Constitution of India and also the principles of natural justice. The petitioner''s prayers for issuance of a writ in the nature of mandamus directing and commanding the respondents and each of them, their subordinates and officers to recall, rescind the purported show cause notice dated July 22, 2004 and to refrain from giving effect or further effect on the basis thereof in the manner whatsoever.
3. Mr. Ramesh Chowdhury Ld. Advocate appearing for the petitioner submits and argues that the petitioner having a unit at Falta Special Economic Zone since 2000. The unit of the petitioner at Falta Special Economic Zone has been licensed as Private Bond Warehousing cum-in-Bond Manufacturing Unit under Sections 58 and 65 of the Customs Act. The petitioner in usual course of business imports various items for the purpose of using the same for its manufacturing purpose. However, during manufacturing certain imported materials were left out and could not be used for manufacturing in the said Unit of the petitioner. Petitioner served several applications before the Development Commissioner, seeking permission for sale thereof to the indigenous buyers under Domestic Tariff Area so that the goods may be purchased by the third parties against the payment of duty of customs as applicable. Development Commissioner granted permission under letter No. FEPZ/LIC/P-10/97/15318 dated March 14, 2002 and FEPZ/LIC/P-10/97/74 dated April 2, 2002 for domestic tariff area sale of the said stock by the petitioner. In view of the said permission petitioner sold and delivered the stock to Enfield Industries Limited, who cleared the goods on payment of duty as determined by the Customs Authorities.
4. In view of the provisions of Customs Act a person seeking clearance of goods from warehouse is to file De-bonding Bill of Entry for home consumption and to the liability to pay the duty is on the importer. The Enfield industries Limited are liable to pay the duty in regard to the goods so cleared by them under any case. The petitioner cannot be held liable for the same. The action of the respondent is otherwise bad in law. There is no scope for any demand for justice. It is further submitted that there is no allegations of fraud by the Customs Authorities and, in fact, no demand was made earlier at the time of clearance of the goods from the warehouse. The notice of demand and show cause thereto is barred by limitation. Mere non-payment of duties is not equivalent to collusion or willful misstatement or suppression of facts. Ld. Advocate draws my attention as to the provision u/s 28(1) of Customs Act. Sri Roy Chowdhury submits that in advertent non-payment is to be met with limitation of six months. Whereas deliberated default cases limitation of five years. He also submits that the rate is not maintainable as the same is without jurisdiction. In fact, no duty has been levied. So no question arises as to payment and no question also arises for invoking the provision of Section 28 of the Customs Act. Mr. Roy Chowdhury appearing on behalf of the petitioner referred the Decision of Supreme Court of India in
5. Mr. K.K. Maity, Ld. Advocate appearing for the respondent argued and submitted that the limitation for demand u/s 28 Sub-Section 4 of the Customs Act, are five years. The matter as alleged in the show cause notice is absolutely factual aspects. Writ Court has got no jurisdiction. The writ is not maintainable as no show cause as asked for has yet been filed and as such there is no order passed in pursuance to the show cause by the petitioner. The petitioner should have response to the show cause notice and should have submits whatever he likes in support of his show cause and in pursuance of such show cause notice, in fact, no cause of action arose the show cause notice has been served complying the provisions and applying proper discretion by the Authority concern.
6. In the instant writ application the petitioner has challenged the validity/liquidity and propriety of a show cause notice issued and served upon them by the Assistant Commissioner of Customs, FSEZ. Petitioner has annexed the copy of said show cause notice marked as Annexure-P2 which was issued from the Office of the Development Commissioner, Falta Special Economic Zone. In the said notice it has been alleged in Para 4 that at the time of assessment of two Bills bearing Bill of entry No. 1352(SEA) FSEZ, dated 26.2.2002 and Bill of entry No. 1372 (SEA) FSEZ dated 4.3.2002 by which the unit i.e. the present writ petitioner company imported Acrylonitrile Butadiene Rubber (NBR), Contained in the 6,000 baggage''s weighing 210 metric ton (collectively of South Korean origin) where found to be under invoiced and accordingly the said unit price was enhanced to u/s. -900 per Metric ton CMT CIF on the basis of units consent endorse on the rebuts of the original copies of the said Bills of entries. In the said show cause notice at Paragraph 5 it has been stated that the permission for DTA clearance by the unit were made subject to compliance with the customs and excise guidelines and regulations and on payment of applicable duties. It has been alleged in the said show cause notice in paragraph 7 that the goods of Korean origin imported by the unit falls under customs tariff holding No. 4002.59 and chargeable to anti damping duty. The unit did not pay such duty at the time of DTA Clearance. As a result there is a short levy of duty to the tune of Rs. 69,49,635/- (Rupees Sixty nine lakh forty nine thousand six hundred and thirty five only) which was equivalent to the anti-dumping duty.
7. On such circumstances the authority having its competence to raise any legitimate and valid demand, in excise of powers conferred u/s 28(1) of the Customs Act, 1962 and in terms of B-17 bond requested the writ petitioner to explain by orally or written statement and to show cause to the Commissioner of customs within 15 days from the date of receipt of the notice as to why an amount of Rs. 69,49,635/- (Rupees sixty nine lakh forty nine thousand six hundred and thirty five only) being the customs duty which is equivalent to anti-dumping duty should not be demanded from the writ petitioner.
8. The background of the case of writ petitioner that the writ petitioner imported various items for the purpose of using the same for its manufacturing purpose and during manufacturing certain imported materials were left out and could not be used for manufacturing in the said unit of the petitioner. Petitioner made applications before the Development Commissioner seeking permission for sale of the said goods to the indigenous buyers. Petitioner urged that the said permission was subject to payment of duty of customs by the third party purchaser. Admittedly, petitioner in pursuance to the permission granted by the Development Commissioner sold and delivered it to one third party buyer. Petitioner has claimed that the third party purchaser cleared the goods on payment on duties payable to customs as determined by the Customs Authorities.
9. In view of the backgrounds as stated above it is cleared that some questions of law/authority of the Customs Commissioner as well as some questions of facts as raised in show cause notice by the Customs Authorities are involved in the present writ application.
10. Admittedly after being served with the impugned show cause notice, the petitioner has not taken any steps to appear before the Customs Authorities and submits their representation either orally or in writing/they straight way has come before this Court challenging the legality and propriety of the notices impugned. The authority concerned has not yet taken any action in pursuance to their notice served upon the present petition. Both the parties raised some points involving the question of law as well as facts which required to be adjudicated by the Authority concern upon submission of representation to the show cause notice. There are provisions in the law to move before higher forum if the petitioner is aggrieved with the decision whatever may be taken by the Authority concern.
11. In a case decided by Hon''ble Division Bench of this High Court reported in
12. In view of the facts and circumstances stated as above and also in view of the observations by their Lordships in the case reported in
