Case Law Details
Victory Electric Vehicles International Pvt Ltd Vs Union of India (Delhi High Court)
Conclusion: In present facts of the case, the Hon’ble Delhi High Court held that the pre-show cause notice consultation is mandatory under Section 28 of the Customs Act, 1962.
Facts: In present facts of the case, the principal grievance of the petitioner was, that the impugned Order-in-Original dated 25.05.2022 was based on a show cause notice [“SCN”], which is untenable in law as SCN could only have been issued after pre-show cause notice consultation had occurred, as contemplated in the proviso appended to Section 28(1) (a) of the Customs Act, 1962. But the respondents/revenue has taken a position, that a pre-consultation notice dated 14.12.2021 was served on the petitioner, which according to petitioner was not legal.
It was submitted that as per Regulation 3(2) mandate that 15 days, from the date of communication, had to be accorded for enabling the recipient of the notice to make submissions in writing and also the recipient of the notice, had a right to indicate to the concerned proper officer, whether he was desirous of being heard in person. On the facts which obtain in the present case, 15 days when factored in from the date of the notice (i.e., 14.12.2021) would have expired on 29.12.2021, whereas the SCN was dated 22.12.2021.
The Hon’ble High Court after taking submissions from both sides into consideration observed that the order-in-original dated 25.05.2022 cannot be sustained as there was the non-adherence to the statutory provision i.e., Section 28(1)(a) read with the proviso appended to the said provision of the 1962 Act. A careful perusal of the said provision would show, that it is obligatory on the part of the concerned officer, to ensure that prior to issuance of the show-cause notice [“SCN”], a pre-notice consultation is held with the person chargeable with duty or interest in such manner as may be prescribed. The second flaw, was the manner prescribed for holding pre-notice consultation, as provided in sub-regulation (2) and (4) of Regulation 3 was not adhered to.
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