Calcutta High Court
Magna Dealers Pvt. Ltd vs Commissioner Of Customs (Port) on 1 July, 2025
OD-7
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTI0N
ORIGINAL SIDE
WPO/261/2025
MAGNA DEALERS PVT. LTD.
VERSUS
COMMISSIONER OF CUSTOMS (PORT)
BEFORE :
THE HON'BLE JUSTICE RAJA BASU CHOWDHURY
Date : 1st July, 2025
Appearance :
Mr. Sudhir Kumar Mehta, Sr. Adv.
Mr. Anurag Bagaria, Adv.
...for the petitioner
Ms. Manasi Mukherjee, Adv.
Mr. Bijitesh Mukherjee , Adv.
...for the respondent
1. Pursuant to the order dated 22nd May, 2025, an explanation has been filed
by the Assistant Commissioner of Customs (Port) as regards the circumstances,
under which the copy of the writ petition was not made over to the learned
Advocate though the writ petition was served on the respondent on 16th April,
2024.
2. Perused the affidavit of the Assistant Commissioner of Customs (Port)
affirmed on 13th June, 2025. The explanation provided is not found to be
proper. It is unfortunate that in paragraph 2(viii) of the affidavit, a statement
has been made which has been affirmed as true to knowledge that since the
‘hard copies’ of the writ petition was not available in the department,
instruction could not be forwarded to the counsel. This Court fails to
understand the aforesaid explanation having regard to the fact that in
paragraph 2 sub-paragraph (i), receipt of hard copy of the writ petition has
been acknowledged.
2
3. It is also clear from the aforesaid affidavit that the writ petition was duly
scanned by the department of the respondent and was received by the legal
section of the respondent. The aforesaid would clearly demonstrate that the
deponent had attempted to somehow wriggle out his responsibility in affording
adequate instruction to the counsel.
4. Though the aforesaid explanation is found to be not proper, however, on
the prayer of Ms. Mukherjee, learned Advocate representing the respondent, I
permit the Assistant Commissioner of Customs (Port) to file an appropriate
explanation especially as regards the failure to communicate with the counsel.
Such explanation in the form of an affidavit must be filed on or before the
matter is taken up next. The aforesaid explanation is necessary to identify the
person responsible for the latches.
5. On merits of the petition the writ petitioner seeks to not only challenge the
show cause dated 6th November, 2015 but also the order in original dated 29th
November, 2017, as well as the order in original dated 6th February, 2025. The
matter has a chequered history. Between 2008 and 2012 the petitioner had
imported 43 consignments of Slack Wax with Residue Wax and filed bills of
entry for home consumption under Section 18 of the Customs Act, 1962
(hereinafter referred to as the “said Act”) for valuation purpose.
6. In the interregnum on the basis of the discovery made on investigation by
DRI, a show cause cum demand notice under Section 124 read with Section 28
of the said Act was issued on 10th July, 2013. Challenging the said show cause
notice a writ petition was filed on the ground that the show cause notice could
not have been issued when no final order for assessment had been passed
under Section 18 of the said Act. Admittedly, a final order of assessment under
3
Section 28 of the said Act was issued on 15th September, 2014. Although, the
petitioner did not succeed before the learned Single Judge, the Division Bench
of this Court by an order dated 10th November, 2014 taking notice of the fact
that the petitioner accepts the final order of assessment, set aside the show
cause dated 10th July, 2013. Following the above a show cause notice dated 6th
November, 2015 was issued. On this occasion since, the show cause was
issued subsequent to the final order of assessment the petitioner participated
in such proceeding though raising a preliminary objection as regards its
maintainability. In such proceeding by an order dated 17th October, 2017 the
adjudicating authority refused the request of the petitioner for cross
examination during personal hearing.
7. According to Mr. Mehta, learned Senior Advocate appearing in support of
the petition, the petitioner being aggrieved filed an appeal before the CESTAT,
Eastern Zonal Bench, Calcutta which was registered as Service Tax Appeal No.
76857 of 2017. Mr. Mehta would submit that in the said appeal no interim
order was passed. However, since the petitioner was not aware of the fate of the
show-cause , the petitioner had written repeated letters praying for copy of the
order in such proceeding. Such fact would corroborate from the letter dated 8 th
March, 2018 and 18th September, 2019. According to Mr. Mehta, since no final
order was either passed or communicated to the petitioner, the proceeding
lapsed and met a natural death having regard to the provisions contained in
Section 28(9) of the said Act. Incidentally, the CESTAT by an order dated 5th
June, 2024 had decided the above appeal filed by the petitioner ex parte and by
treating the denial of the request for cross-examination, breach of natural
justice while setting aside the order had remanded the same back to the
4
adjudicating authority. On this score Mr. Mehta would submit that what was
set aside was the order/communication dated 17th October, 2017 which formed
subject matter of the above appeal. Incidentally, on the strength of the
aforesaid order the adjudicating authority had passed the order impugned
wherein he has chosen to reiterate his earlier order dated 29 th December, 2017.
According to Mr. Mehta, the order dated 29th December, 2017 did not see the
light of the day and as such, by the order impugned the lapsed proceeding
could not have been resurrected.
8. Ms. Mukherjee, learned Advocate on the other hand appearing on behalf of
the respondent would submit that there is no irregularity on the part of the
respondent in issuing the show cause notice. Admittedly, on this occasion the
show cause was issued after the final order of assessment under Section 28
had been passed. The petitioner had in fact participated in the enquiry initiated
vide show cause notice dated 6th November, 2015. According to her, the order
remanding the matter back to the adjudicating authority was passed by the
Tribunal in an appeal filed by the petitioner in a service tax matter, unrelated
with this case. As such no interference in the extra ordinary jurisdiction is
called for. She, however, prays for leave without prejudice to the point of
maintainability of the writ petition, to file affidavit-in-opposition.
9. Heard the learned Advocates appearing for the respective parties and
considered the materials on record. Prima facie, it would transpire that
although, the previous show cause dated 10th July, 2013 was set aside on the
ground that such show cause was issued prior to passing of the final order of
assessment under Section 18 of the said Act, but, I find as is admitted by the
5
parties, on this occasion the final order of assessment has been passed on 15th
September, 2014 and the same was accepted by the parties.
10. Having regard thereto, prima facie though the respondent cannot be
faulted for having issued the show cause notice, I, however, find from the
Scheme of the Act especially, having regard to the second proviso to section
28(9) that if the proper officer is unable to determine the amount of duty or
interest due within a specific time frame as has been provided for completion of
the proceeding, the same shall be deemed to have been concluded as if no
notice had been issued. Although, eventualities have been provided in sub-
section (9A) of Section 28 for concluding the proceeding beyond the time
prescribed, I find that in the instant case none of such eventualities, subsists.
Ordinarily, therefor, going by the case made out by the petitioner no order
under Section 28(9) of the said Act could have been passed unless, the same
was passed and served on the petitioner within the prescribed period. However,
in the instant case the proceeding appears to have been restarted pursuant to
an order dated 5th June, 2024 in the Service Tax Appeal No. 76857 of 2017,
though Ms. Mukherjee disputes the correctness thereof. Although the order of
remand is explicit from the order impugned, without going into such
controversy at this stage I find that the order impugned has been passed on 6th
February, 2025 in respect of a show cause dated 6th November, 2015, which is
way beyond the prescribed period. Ms. Mukherjee, has also not been able to
demonstrate that the order dated 29th December, 2017 which the proper officer
appears to have reiterated was at all served on the petitioner.
11. Having regard thereto, I am of the view that the petitioner having made out
a prima facie case, the writ petition should be heard.
6
12. Pending hearing of this petition the order impugned shall remain stayed.
Affidavit-in-opposition to the instant writ petition be filed within a period of six
weeks, reply, if any within four weeks thereafter. The matter is made returnable
on 9th September, 2025.
(RAJA BASU CHOWDHURY, J.)
akg/GH