TaxTMI 
TaxTMI 
2022 (6) TMI 317
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....show cause notice DRI/MZU/C/INV-11/2006-07/2656 dated 25.03.2009 was not issued by the proper officer: The said show cause notice DRI/MZU/C/INV-11/2006 07/2656 dated 25.03.2009 was issued by ADG - DRI, Mumbai. In the number of Orders, it has been held that the DRI officers are not the proper officers to issue show cause notice under the Customs Act 1962. The Applicant relies upon the following case law, the same is as under: 2021 (376) E.L.T. 3 (S.C.) CANON INDIA PVT. LTD. Versus COMMISSIONER OF CUSTOMS - Show cause notice - Issuance of - By DRI officer - Entrustment of Customs officer's functions to DRI should have been done by Central Government under Section 6 of Customs Act, 1962 as DRI was set up under Notification issued by Finance Ministry - Entrustment of functions under Notification No. 40/2012-Cus. (N.T.) issued under Section 2(34) ibid was invalid as sub-section only defined proper officer and does not empower any authority to entrust functions to officers - Proceeding initiated by show cause notice issued by Additional Director General of DRI found to be invalid and without authority. [paras 19, 21, 23) 19. It appears that a Deputy Commissioner or ....
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...., were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2(34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power. 22. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set aside and the ensuing demands are also set aside." 2.1 I have heard Shri A K Prabhakar, Advocate for the Applicants and Shri Bhushan Kamble, Assistant Commissioner, Authorized representative for the Revenue. 2.2 Arguing for the applicants, learned counsel submits that they intend to take this ground as the additional ground in the appeal filed by them. He submits that the issue of jurisdiction is being raised by him for first time before this tribunal and same should be allow....
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.... Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See: M/s Rup Diamonds & Ors., v. Union of India & Ors., AIR 1989 SC 674; State of Karnataka & Ors. v. S.M. Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal & Ors. v. State of Haryana & Ors., AIR 1997 SC 2366)." (ii) In the case Remington Rand Of India Ltd vs Thiru R. Jambulingam [1975 SCC (3) 254] didn't allowed the plea challenging the jurisdiction of the Commissioner to hear the appeal, taken for first time in appeal before Supreme Court, stating as follows: It is rather extraordinary that even though the Commissioner at the instance of the appellant had rejected the plea of protected workman, the management now seeks to raise a plea of Ouster of jurisdiction before the Commissioner on the self-same ground. This, in our opinion, cannot be allowed. Besides, the appellant submitted to, the jurisdiction of the Commissioner and had not raised any, objection....
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....squalification petition filed by the respondents. Even otherwise, the record clinchingly shows that the appellants had submitted to the jurisdiction of the Additional Collector and participated in the proceedings before the Additional Collector without any reservation. Therefore, having lost before the Additional Collector, they cannot turn round and challenge the jurisdiction of the Additional Collector for the first time in the appeals filed under Article 136 of the Constitution. It is well settled that if a person has submitted to the jurisdiction of the Authority, he cannot challenge the proceedings, on the ground of lack of jurisdiction of said authority in further appellate proceedings. Had this plea, been raised before the Additional Collector, the respondents would have got the opportunity to place on record notification issued under the provisions of Maharashtra Land Revenue Code, 1966 to establish that the Additional Collector was delegated the powers of the Collector and was competent to decide Disqualification Petition." (iv) In the case of Gollapudi Pullayya Company [1958 9 STC 24 AP] Hon'ble Andhra High Court held as follows:- "Even apart from that, I am u....
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....onal Commissioner of Customs or Additional Commissioner of Customs (Preventive) or Additional Director of Revenue Intelligence or Additional Commissioner of Customs (Audit); (h) Joint Commissioner of Customs or Joint Commissioner of Customs (Preventive) or Joint Director of Revenue Intelligence or Joint Commissioner of Customs (Audit); (i) Deputy Commissioner of Customs or Deputy Commissioner of Customs (Preventive) or Deputy Director of Revenue Intelligence or Deputy Commissioner of Customs (Audit); (j) Assistant Commissioner of Customs or Assistant Commissioner of Customs (Preventive) or Assistant Director of Revenue Intelligence or Assistant Commissioner of Customs (Audit); (k) such other class of officers of customs as may be appointed for the purposes of this Act.". 88. In section 5 of the Customs Act,- (a) after sub-section (1), the following sub-sections shall be inserted, namely:- "(1A) Without prejudice to the provisions contained in subsection (1), the Board may, by notification, assign such functions as it may deem fit, to an officer of customs, who shall be the proper officer in relation to such functi....
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....disposed of in accordance with the provisions of the Customs Act, as amended by this Act. As is evident by the section 97, which starts with the non obstante class, the decisions of the courts, tribunal and authority on the issue in relation to the actions taken under the Chapters V, VAA, VI, IX, X, XI, XII, XIIA, XIII, XIV, XVI and XVII of the Customs Act have been ousted. Thus by this section, all the actions taken under these chapters have been declared to have been validly taken even if there is a contrary decision of any court in the matter. The show cause notice issued by the officers having been declared as validly issue, contrary to the view expressed in any decision of any court or tribunal, has to be held to be validly issued. In view of this specific declaration of law by way of the Finance Act, 2022 this plea on the earlier decision in case of Canon cannot be allowed. 3.5 A decision of the Kolkata Bench in case of Beriwala Impex has been brought to my knowledge whereby the bench has after consideration of the provisions of the Finance Bill, 2022 observed as follows: "26. If the Finance Bill becomes the Act, DRI officers will be at par with Customs o....
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.... particular thing or particular person. This brings certitude as to who can issue a Show Cause Notice to demand duty or tax not levied short levied, not paid, short paid, etc. in all these three Acts viz., Customs Act, Central Excise Act, and the Finance Act, 1994. We also find legislature has also used definite article in subsequent enactments. In the Central Goods and Services Tax Act, 2017 (CGST Act) section 73 deals with demands other than cases of fraud, wilful mis-statement or suppression of facts while section 74 deals with cases where these elements are present. In both sections, the notice can be issued by 'the proper officer'. These provisions of CGST Act, 2017 are also made applicable to Interstate Goods and Services Tax Act. Similar provisions are also there in the State Goods and Services Tax Acts of various states. Section 156 of the Income Tax Act, 1961 also gives the power of issuing notice of demand on the assessing officer. What is common in these provisions of various enactments is that the power to issue notice demanding tax or duty is always conferred on a particular officer which legislative intent is clarified by using definite article "the‟ instead of ....