bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO.8 OF 2005 The Commissioner of Customs (EP) ..Appellant Vs. M/s.Polynova Chemicals Industries ..Respondent Mr.P.S.Jately for appellant. Mr.P.S.Sanklecha with Mr.N.D.George for respondent. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 12TH JANUARY,2010 P.C. 1. Heard. Perused appeal. 2. One of the adverse findings recorded against the Revenue by the Tribunal relating to the show cause notice and its invalidity thereof read as under: 2(a) “The shipping bill was filed on 3rd November 1998 whereas the show cause notice was issued on 22nd November, 1999 which is beyond the period of 90 days stipulated by Circular No.69/97 customs dated 8th December, 1997 as modified by Circular No.23/99 Customs dated 22nd October, 1998. The said circulars are binding on the department held in the case of JG Exports Vs. CC-1999 (105) ELT 258. The Circular No.23/99 Customs dated 11 May, 1999 relied upon by the Commissioner and which empowers the Commissioner to extend the said period of 90 days for reasons to be recorded in writing came into force after the period of 90 days in the present case as prescribed had already expired in February, 1999. In any case no order recording in writing reasons for extending the period had been passed in the present case nor any notice was issued to the appellant proposing extension of the time period to issue the notice.” (Emphasis supplied) 3. The Tribunal, after having observed above regarding illegality of the show cause notice, proceeded to record adverse findings against the Revenue on merits which are to be found in paragraphs (a) to (h) of the impugned order. Considering the cumulative effect of all these findings, the appeal filed by the respondent assessee was allowed by the Tribunal. 4. The appeal was admitted to consider following questions by an order dated 13th July, 2005. (a) "Whether in facts and circumstances of the case, the tribunal was right in holding that the export value cannot be caused to be upset by and on local market value evidence ? (b) "Whether in the facts and circumstances of the case, the Tribunal was right in holding that the declared FOB value is demonstrated and proved by the Appellants (Exporter to be the true sale consideration between the Appellants and the Foreign Buyers ?" (c) "Whether in the facts and circumstances of the case, the Tribunal was right in holding that in view of submission of evidence of realization of the entire declared export value, reliance on Om Prakash Bhatia’s case cannot help the Revenue ?" (d) "Whether in the facts and circumstances of the case, the Tribunal was right in co-relating the foreign exchange remittance by the Appellants with that of the export proceeds ?" 5. None of the aforesaid questions relates to the challenge leading to the adverse finding relating to the legality and validity of the show cause notice. The adverse finding relating to the show cause notice is not a subject matter of challenge in this appeal. Under these circumstances, one has to conclude that the basic adverse finding against the Revenue relating to the validity of the show cause notice has become final and conclusive. In that event, it is not necessary to examine order on merits. Once the basic foundation i.e. show cause notice is held to be bad then entire structure standing thereon cannot be protected. 6. In the above view of the matter, the appeal is liable to be dismissed. In the result, appeal stands dismissed with no order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)