TaxTMI 
TaxTMI 
2017 (12) TMI 732
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....y, the another summons dated 10.03.2017, was issued to the partner K.Elumalai, petitioner in W.P.No.30094 of 2017, which was challenged by him in W.P.No.6650 of 2017. The grounds of challenge was that the petitioner had appeared before the second respondent and co-operated with the investigation and submitted all documents, however, he was brutally handled by the officers of the second respondent and issuing further summons calling upon the petitioner to appear without disclosing the reasons for such appearance is not sustainable. This Court considered the legal issue as to whether a Writ Court can injunct or quash the summons and after taking note of the Hon'ble Supreme Court in the case of Commissioner of Customs, Calcutta, vs. MM Exports, reported in 2007 (212) ELT 165, by order dated 04.07.2017, held that the Writ Petition was not maintainable and accordingly, dismissed the same, giving liberty to the respondents to issue fresh summons setting out the reasons for which the petitioner is to be summoned before the second respondent by invoking power under Section 108 of the Customs Act, 1962 and proceed in accordance with law. The operative portion of the order reads as follo....
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....ng out the reasons for which the petitioner is to be summoned before the second respondent by invoking its power under Section 108 of the Customs Act, 1962 and proceed in accordance with law. 3. Pursuant to the direction issued in the earlier Writ Petition, the impugned summons has been issued to the petitioner stating that he is required to appear and produce the following documents for the period from 2013-14 to 2016-17. (i).Copy of the Bill of Entry; (ii).Copy of the Invoice; (iii).Copy of the packing list; (iv).Copy of the Bill of Lading; (v).Copy of Insurance; (vi).Chartered Engineer's Certificate; (vii).Proforma invoice raised by overseas supplier; (viii).Sales contract entered into with overseas supplier. 4. In these Writ Petitions, the petitioners have not challenged the summons issued by the second respondent, as they are aware that this Court had already rejected a challenge by the petitioner to an earlier summons issued by the second respondent. Therefore, the petitioner appears to have differently couched the prayer sought for in the Writ Petition to forbear the second respondent from proceeding with the enquiry pursuant to the summons dated 06.11....
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....Trade 2004 (177) ELT 57 (Mad). 7. In reply, the learned Senior counsel appearing for the petitioner referred to Section 5 of the Customs Act and submitted that the Senior Intelligence Officer is lower in rank than the Assistant Director and in such circumstances, he would have no jurisdiction to summon the petitioners. 8. Heard Mr.B.Kumar, learned Senior counsel appearing for Mr.R.Sivakumar, learned counsel appearing for the petitioner and Mr.V.Sundareswaran, learned Senior Standing counsel appearing for the respondent. 9. Though the petitioners seek for issuance of a Writ of Mandamus to prohibit the second respondent from proceeding with the enquiry pursuant to the summons dated 06.11.2017, it is an indirect challenge to the summons. The petitioner having been unsuccessful in its earlier attempt, cannot now maintain these Writ Petitions and indirectly challenged the summons issued by the second respondent. Therefore, the petitioner is estopped from approaching this Court for an identical relief for the second time. Nevertheless, the petitioner has challenged the jurisdiction of the second respondent and this challenge is based on the decision of the Hon'ble Supreme Court in....
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....for which purpose, the Port of import was determined as the jurisdictional Commissionerate. In the instant case, the exercise done by the second respondent is investigation and it does not pertain to a single consignment imported by the petitioners. By the summons, dated 06.11.2017, the petitioners have been called upon to produce documents pertaining to the imports done for the period from 2013-14 to 2016-17. Infact, this Court in the earlier Writ Petition specifically directed that the summons should set out reasons for which the petitioner is being summoned. This has been explicitly stated with summons dated 06.11.2017. Therefore, it is not a singular transaction, which is being investigated, but past transaction as well. This has been held to be permissible in the case of Commissioner of Customs (Sea), vs. CESTAT, Chennai 2009 (240) ELT 166 (Mad), wherein it was held that past conduct of the importer would assume significance in the course of investigation and there is power to investigate into past cases. 13. In Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (Fera) vs. Arun Kumar Bajoria reported in (1988) 1 SCC 52, the Hon'ble Supreme Court considered as t....
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....accept the statement made by the learned senior counsel at the Bar that all such officers, holding the post of Senior Intelligent Officer, have been given the status of the Gazetted officer. Hence that question is concluded against the appellants. 10. A glance at Sec.108 of the Customs Act, under which the summons is given, would suggest that it is a power given to any Gazetted officer of the Customs Department to summon any person during any enquiry which the officer would make in connection with the smuggling of any goods. A summons can be for the production of the documents or those in possession or under the control of the persons summoned and such a summoned person is bound to attend and to state the truth upon any subject respecting which he is examined by the summoning officer. These powers are given obviously with an idea to check the smuggling. The definition of 'smuggling' is to be found in Sec.2(39) of the Act, which is as under: "smuggling in relation to any goods, means any act or omission which will render such goods liable to confiscation under Sec.111 or section 113" When Sec.111 is seen, it is clear that any goods brought from a place outside India woul....