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HIGH COURT OF DELHI
W.P.(C) 12233/2019
M/S SUMAT PERSHAD AND SONS AND ANR. .....Petitioners
Through: Mr.Mukesh Anand, Advocate with Mr.Sakshit Bhardwaj and Mr.Raghav
Gupta, Advocates.
AND ANR. ..... Respondents
Through: Ms.Samiksha Godiyal, Advocate with Mr.Mohit Nege, Mr.Anchit Singla and Mr.Nishchaiy Sharma, Advocates.
Mr.Bhagvan Swarup Shukla, CGSC with Mr.Saksham Sethi, Advocate for
UOI.
Date of Decision: 06th October, 2023
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
1. The present review petition is directed against the judgment dated 27th November, 2019 passed by this Court in W.P.(C) 12233/2019.The said judgment was carried in appeal to the Supreme Court by way of S.L.P.(C) 30509/2019 [M/S Sumat Pershad And Sons & Anr Vs. Commissioner of Customs (Export) & Anr.] which was disposed of, by order dated 9th January, 2020 in the following terms:- “Learned counsel for the petitioners invited our attention to paragraph 39 of the Writ Petition to contend that the specific grievance of the petitioners was that the authority did not furnish copies of the relevant documents referred to in paragraph 7 of the communication dated 30.07.2019, despite the direction issued by the High Court and yet proceeded to pass Order-in- Original No. 06/2019/SUNIL TATED/COMR/EXP/ICD/TKD (DIGIT NO. 20180220161942-903 on 11.10.2019, that too without giving any opportunity of hearing to the petitioners. That grievance has been glossed over by the High Court. In that case, it will be open to the petitioners to resort to remedy of review before the High Court, which be filed within four weeks from today. If the Review Petition is decided against the petitioners, it will be open to the petitioners to challenge the said decision as well as the impugned judgment by way of Special Leave petition before this Court. The Special Leave Petition is disposed of accordingly. Pending applications, if any, stand disposed of.”
2. The matter has thus been re-listed before this Court consequent to the aforesaid order passed by the Supreme Court.
3. Mr.Mukesh Anand, learned counsel who appears for the review petitioner has invited our attention to para 7 of the communication dated 30th July, 2019, addressed by the petitioner to the Commissioner of Customs, who was to adjudicate the Show Cause Notice No.
C. NO. VIII/ ICD/ 10/ TKD/ SIIB-EXP/ INV/ SUMAT/ 114/ 2016 dated 07th March, 2016. The said paragraph may be reproduced in extenso, thus:-
4. Mr.Mukesh Anand, learned counsel for the review petitioner submits that the aforesaid representation was required to be decided in the first instance, as per the directions of the Division Bench of this Court in the order dated 6th September, 2019 which reads thus:- “W.P.(C) 9680/2019
1. We have heard learned Senior counsel for the petitioners who has submitted that application dated 30th July, 2019 (annexure P-5) has been preferred before the Respondent No.1 for allowing the cross examination of witnesses which is referred to in the show cause notice given by the respondents to these petitioners. These petitioners have demanded certain documents so that reply to the show cause notice can be given. It is also submitted by the learned Senior counsel for the petitioner that earlier an order was passed on 22nd July, 2019 in W.P.(C) 7830/2019 whereby this Court has directed the respondents to adjudicate the show cause notice within a period of four weeks.
2. Having heard learned counsel for both sides and looking to the facts and circumstances of the case, we hereby direct the Respondent No.1 to decide the application preferred by these petitioners which is dated 30th July, 2019 (AnnexureP-5) whereby the petitioners are seeking cross examination of few witnesses and also demanding certain documents from the respondents authorities.
3. The decision shall be taken by the Respondent No.1 upon application of the petitioner dated 30th July, 2019 (Annexure P-5) in accordance with law as expeditiously as possible and practicable, preferably within a period of three weeks from today.
4. With these observations, this writ petition is hereby disposed of.
5. Liberty is reserved with this petitioner to approach the appropriate Tribunal/Court/Forum if so advised, in accordance with law with proper averments, allegations and annexures.
6. In view of the aforesaid order, time limit prescribed by this Court for adjudication of the show cause notice in our order dated 22nd July, 2019 in W.P.(C) 7830/2019 is extended and the same shall be adjudicated upon as expeditiously as possible and practicable, preferably within a period of three weeks from today.”
5. Mr.Mukesh Anand, learned counsel for the review petitioner, points out that, in para 2 of the order dated 6th September, 2019, the Division Bench had directed the Respondent No.1 i.e. learned Commissioner, to decide the application dated 30th July, 2019 preferred by the petitioner within three weeks and had, therefore, enlarged the time available for deciding the show cause notice itself. Instead, submits Mr.Mukesh Anand, the learned Commissioner proceeded to decide the show cause notice within the said period of three weeks and has left the request contained in para 7 of the letter dated 30th July, 2019 incompletely addressed. The especial grievance of Mr.Mukesh Anand is that the learned Commissioner has not returned any finding, one way or the other, on the request of the petitioner for being provided copies of the licenses/scrips containing all annexures and amendments under which exemptions for customs duty was granted and which formed subject matter of the dispute in the show cause notice.
6. We have perused the order of the learned Commissioner dated 11th October, 2019. The learned Commissioner has dealt with the aforenoted request contained in the representation dated 30th July, 2019 in para 15 of the order which reads as thus:-
7. We find on a comparison with para 15 and para 7 of the communication dated 30th July, 2019 that, in fact, the learned Commissioner has not returned any finding of the petitioner’s request for being provided the original copies of the licenses/scrips as requested in para 7 of the representation dated 30th July, 2019.
8. Ms. Samiksha Godiyal, learned standing counsel for the revenue, submits that the learned Commissioner has provided some of the documents/details sought by the petitioner.
9. Be that as it may, seen in the light of the order passed by the Supreme Court and the specific requests made by the petitioner in para 7 of the representation dated 30th July, 2019, it appears that the finding, in our judgment dated 27th November, 2019 to the effect that the learned Commissioner had adequately dealt with the representation dated 30th July, 2019 does not appear to be correct.
10. Accordingly, the application for review is allowed. W.P.(C) 12233/2019 is restored to its original number to be re-heard.
11. List before the Bench as per Roster on 8th November, 2023.
C. HARI SHANKAR, J
MANMOHAN, J OCTOBER 06, 2023