TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 123
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....;ble Supreme Court in "Commissioner of Customs v. Sayed Ali, (2011) 3 SCC 537" and also the recent judgment dated 3.5.2016 of the Delhi High Court "M/s Pace International & another v. Union of India & others, 2016 SCC Online Del 2597" wherein show cause notices issued prior to 8.4.2011 inter alia by Additional Director General, Directorate of Revenue intellgence were quashed and set aside in Writ Jurisdiction. 3. The petitioners have pointed out that they had also preferred Appeal before the Tribunal in which there is also an issue of pre-deposit. On behalf of the petitioners it was submitted that they would withdraw the appeal, and the writ petition can be finally disposed of. Since the issue raised is of jurisdiction to issue the notice itself, as per the settled law, the alternative remedy is not a bar and thus we are inclined to exercise the writ jurisdiction. 4. That while interpreting the scope and ambit of Section 28 of Customs Act, 1962 (as it existed prior to its substitution on 8.4.2011), the Hon'ble Supreme Court in Sayed Ali's case (supra) after analyzing the relevant provisions of the Act including the definition of 'proper officer' under Section 2 (3....
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.... and confer on them the powers and duties to be exercised/discharged by them, but for the purpose of Section 28 of the Act, an officer of Customs has to be designated as 'proper officer' by assigning the function of levy and collection of duty, by the Board or the Commissioner of Customs. The argument of the Revenue was rejected accordingly. 6. Thereafter, on 8.4.2011, the Finance Act, 2011 received the assent of the President and was notified in the Official Gazette, which vide Clause 42 provided that for the earlier Section 28 of the Act the new Section 28 would be substituted. Explanation 2 to the said new Section 28 read as under :- "Explanation 2. - For the removal of doubts, it is hereby declared that any non-levy, short-levy or erroneous refund before the date on which the Finance Bill, 2011 receives the assent of the President, shall continue to be governed by the provisions of Section 28 as it stood immediately before the date on which such assent is received." 7. Since a specific order or notification issued by the Board assigning the functions to the specific officers of the Customs to enable him to act as 'proper officer' for various purposes under ....
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....act that any specific assignment as proper officer was issued or not. The Bill therefore, proposed to amend the Customs Act, 1962 retrospectively and to validate anything done or any action taken under the Said Act in pursuance of the provisions of the said Act at all material times irrespective of issuance of any specific assignment on 6th July, 2011. 10. Section 28 (11) was thereafter inserted after sub-section (10) in this new Section 28 of the Act and the same reads as under : "(11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all persons appointed as officers of Customs under sub-Section (1) of Section 4 before the 6th day of July 2011 shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this Section." ......(emphasis ours) 11. The non-obstante clause referring to "anything to the contrary contained in any judgment, decree or order of any Court of law, tribunal or other authority" reveals the legislative intent to overcome the judgment of the Supreme Court in Sayed A....
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.... University, Ahmedabad v. Krishna Rangnath Mudholkar AIR 1963 SC 703 para 20). 66. The mere fact that Section 28(11) has been given retrospective effect does not solve the essential problem pointed out by the Supreme Court in the Sayed Ali case, which is the absence of the assigning of functions to 'proper officers' under Section 2(34) of the Act. The even more serious problem is the impossibility of reconciling two contradictory provisions, viz., Explanation 2 to Section 28 and Section 28(11) of the Act. 67. ......................The past actions of the officers of the DRI and DGCEI who are not designated as 'proper officer' in issuing SCNs for the period prior to 8th April 2011 have not been validated. 68. There is also merit in the contention of the Petitioners that Section 28(11) confers validity only on 'the proper officer'. As explained in Consolidated Coffee Ltd. v. Coffee Board (supra), the use of article 'the' as opposed to 'an' or 'any' is indeed significant. Only officers who have been assigned the functions of the 'proper officer' for the purposes of Section 17, i.e., assessment of the bills of entry can b....