Page 166 - ELT_15th July 2020_Vol 373_Part 2

148 EXCISE LAW TIMES [ Vol. 373
was complained of. There was no allegation as is being made today, about illegal
importation of gold or any other items in that particular complaint, made some
seven days after the incident.
26. Therefore, prima facie we are of the view that the purported Section
108 summons dated 26th March, 2019 could not have covered the contravention
now alleged by them. Even if it is said that this summons covered the alleged
illegal, importation or other contravention in that case there ought to have been a
recital in the summons as to the new allegation the Customs sought to level
against the appellant.
27. Therefore, we prima facie observe that the only question before the
Court is whether this Section 108 summons could have been issued in aid of in-
vestigation by the Customs into an offence under Section 133 of the Customs Act,
1962.
28. In our opinion, a substantial question of law is raised.
29. We do not find that any reason has have been given by the Learned
Single Judge while passing an interim order. The interim order has been made
after narrating the submissions of Learned Counsel for the parties.
30. This question of law has to be tried upon exchange of affidavits be-
fore the Learned single Judge.
31. This summons was issued some 11 days after the incident and was
made returnable today at 12 days after its date of issuance.
32. Considering the fact that this incident occurred more than three
weeks ago, the appellant for whatsoever reason could leave the airport and the
summons issued belatedly, we find that there is no urgency requiring the appel-
lant to answer the summons today or at any date in the near future.
33. We direct the Joint Commissioner of Customs to extend the return-
able date of this summons to a date after 31st July, 2019 to enable the Learned
Single to decide the matter.
34. The impugned judgment and order is modified to the extent indi-
cated above. The appellant shall not be required to appear in response to the im-
pugned summons before the authority today and up to 31st July, 2019.
35. Let affidavits be exchanged in the writ application and the same be
heard out by the Learned Single Judge.
36. We make it absolutely clear that the Learned Single Judge will no
way be influenced by our findings which are prima facie and will decide the writ
in accordance with his or her own judgment.
37. Affidavit-in-opposition to the above writ petition to be filed by 10
th
May, 2019.
38. List this application for hearing on 20th June, 2019 subject to the
convenience of the single Bench.
39. Affidavit-in-reply may be filed in the mean time.
40. The validity of the summons will abide by the result of the writ ap-
plication.
41. The Learned Judge is requested to dispose of the writ application
before the returnable date of the summons.
42. The appeal (MAT 538 of 2019) and the stay application (CAN 3912
of 2019) are disposed of.
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