TaxTMI 
TaxTMI 
2022 (6) TMI 723
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....nue Intelligence (DRI). 171 - 178 VI Classes of Customs Officers. 179 - 189 VII Note on the Cadre in the Customs Department. 190 - 201 VIII Changes to Section 17 w.e.f. 11.04.2011- The Assessment of Bill(s) of Entry and Shipping Bill(s). 202 - 235 IX Officers of Directorate of Revenue Intelligence (DRI) are already officers of Customs. 236 - 289 X Conclusion. 290 - 313 PART I - INTRODUCTION 2. Part I - Introduction is divided into two parts namely, Part - A and Part - B. There are 5 Writ Petitions in Part - A. In these 5 Writ Petitions, the respective petitioners have challenged the impugned Order in Original and impugned Recovery Notice as detailed below:- Table I - (Part - A) Sl. No. W.P.Nos Name Date Order in Original No. 1 33099/ 2015 M/s.N.C.Alexander 29.06.2015 39839 of 2015 2 27344/ 2017 M/s.E.Duraisamy & Bros., 18.07.2017 58133 of 2017 3 18918/ 2016 Mr.Chirag U Jain 05.02.2016 44560 of 2016 4 12929/2021 Shri.Farooq Ubaithulla 30.12.2015 44421 of 2016 5 12933/ 2021 Shri.Farooq Ubaithulla 06.05.2019 impugned Recovery Notice No.F.No....
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....m submission of the respective counsel for the petitioners in the respective writ petitions is that the impugned proceedings under the respective Show Cause Notices as also the respective impugned Order-in-Originals are without jurisdiction as they emanate from a person who is not a "proper officer" within the meaning of Section 2(34) of the Customs Act, 1962. 6. In all these writ petitions, the challenge to the impugned Show Cause Notices and the impugned Order-in-Originals are inspired from the decision of the Hon'ble Supreme Court in Commissioner v. Sayed Ali 2011 (265) E.L.T. 17 (S.C.) and the decision of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021(376) E.L.T. 3(S.C.). The said decision is now the subject matter of a review before the Hon'ble Supreme Court. 7. The Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021(376) E.L.T. 3(S.C.) the above case has held that the officer from the Directorate of Revenue Intelligence (DRI), are not the "Proper Officer" within the meaning of Section 2(34) of the Customs Act, 1962 for issuing Show Cause Notice under Section 28 of the Customs Ac....
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....on of action taken or function performed before the date of commencement of Finance Act, 2022 under various Chapters of the Customs Act by any officer of Customs, as specified in Section 3 of the Customs Act,1962 as amended, where such action was in pursuance of their appointment and assigning of functions by the Central Government or the Board under the Customs Act, 1962. 11. The explanation to Section 97 of the Finance Act, 2022 further makes it clear that any proceeding arising out of any action taken under this Section and pending on the date of commencement of this Act shall be disposed of in accordance with the provisions of the Customs Act,1962 as amended by the Finance Act 1962. Section 97 of the Finance Act, 2022 reads as under:- Validation of certain actions taken under Customs Act. 97. Notwithstanding anything contained in any judgment, decree or order of any court, tribunal, or other authority, or in the provisions of the Customs Act, 1962 (hereinafter referred to as the Customs Act),-- (i) anything done or any duty performed or any action taken or purported to have been taken or done under Chapters V, VAA, VI, IX, X, XI, XII, XIIA, XIII, X....
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....ective Writ Petitions. PART III - FACTS OF THE CASES AND BRIEF SUBMISSIONS PART- A : CHALLENGE TO THE IMPUGNED ORDER-IN-ORIGINALS:- W.P.No.33099 of 2015 : [M/S.N.C.ALEXANDER-Sl.No.1 in TABLE-I]: 16. In W.P.No.33099 of 2015, the petitioner has challenged the impugned Order in Original No.39839 of 2015 dated 29.06.2015 passed by the respondent, Commissioner of Customs. The prayer in this writ petition reads as follows: " Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the Respondent pertaining to the Order in Original No.39839/2015 dated 29.06.2015 and quash the same and forbear the Respondent from proceeding with any recovery of the Adjudicated dues pursuant to the said Order In Original, as it is partisan, one sided and issued with a closed mind besides being passed in clear violation of the Principles of Natural Justice and in passed in gross judicial indiscipline, as the petitioner had relied upon Judgements of this Hon'ble Court in W.P.No.1641 of 2008 dated 10.01.2011 and W.P.No.3720/2009 dated 01.12.2014; besides the orders of Commissioner of Customs (Appeals), pertaining....
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....ter in this order. 22. That apart, the challenge to the impugned Order in Original is also on the ground of alleged violation of principles of natural justice and contrary to the decision of this Court in W.P.No.1641 of 2008 and W.P.No.3720 of 2009 vide its order dated 10.01.2011 and 01.12.2014, respectively. 23. Further, it is submitted that the imports were made on the basis of an "Apostilled Contract" issued in terms of Hague convention, 1961 and that such contract is not only binding on the signatories but also the authorities functioning under the aegis of the Indian Constitution. 24. The facts of the case indicate that the petitioner had earlier filed W.P.No.3720 of 2009, for a Writ of Mandamus, to direct the respondents to assess the Bills of Entry filed by the petitioner during April 2003 to January 2009. 25. During the pendency of the above writ petition, the petitioner was issued with the above mentioned Show Cause Notice dated 26.03.2010 bearing Reference F.No.VIII/371/2009-DRI-CZU by the Additional Director General of Directorate of Revenue Intelligence. 26. In the light of the submissions of the petitioner, the said writ petition in W.P.No.3720 of 2009 w....
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....2017 [Sl.No.2 in Table-I] the petitioner has challenged the impugned Order in Original No.58133 of 2017 dated 18.07.2017 passed by the respondent Commissioner of Customs. The prayer in this writ petition reads as follows: "Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for the records of the Respondent in F.No.CAU/DRI/CHE/06/2012-CH-IV; leading to issuance of Order-in-Original No.58133/2017 dated 18.07.2017 and quash the same as the same is contrary to the judgments of the Hon'ble Apex Court and the circulars issued by the Central Board of Excise and Customs (CBEC)." 31. By the impugned Order-in-Original, the respondent Commissioner of Customs has confirmed the demand under Section 28 of the Act and has also imposed penalty and ordered confiscation of the imported goods under Section 124 of the Act as proposed in the Show Cause Notice dated 10.02.2012 bearing reference No.VIII 26/363/07 issued by the Directorate of Revenue Intelligence(DRI). 32. The dispute in this case also pertains to alleged wrongful availing of the benefit of Customs Notification No.41/2005-Cus dated 09.05.2005 read with Appendix of 37-B of Han....
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....is opposed on the ground that the petitioner has an alternate remedy before the Appellate Tribunal. 39. On merits, similar submissions in W.P.No.33099 of 2015 were made by the learned counsel for the respondent in W.P.No.27344 of 2017, also. W.P.No.18918 of 2016: [CHIRAG U JAIN-Sl.No.3 in TABLE-I] 40. In W.P.No.18918 of 2016, the petitioner has challenged the impugned Order in Original No.44560 of 2016 dated 05.02.2016 passed by the respondent, Commissioner of Customs. The prayer in this writ petition reads as follows: "Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the respondent pertaining to the Order in Original No.44560/2016 dated 05.02.2016 and quash the same and forbear the Respondent from proceeding with any recovery of the Adjudicated dues pursuant to the said Order In Original, as it is partisan, one sided and issued with a closed mind besides being passed in clear violation of the Principles of Natural Justice." 41. By the impugned Order-in-Original, the first respondent Commissioner of Customs has confirmed the demand proposed in the Show Cause Notice dated 25.04.20....
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....er in W.P.No.12933 of 2021 "Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified calling for the records pertaining to the impugned Order-in-Original No.44421 of 2016 dated 30.12.2015 issued in F. No.CAU/DRI/CHE/21/2015 issued by the first respondent and quash the same. "Petition filed under article 226 of the Constitution of India to issue a Writ of Certiorarified calling for the records pertaining to the impugned recovery notice dated 06.05.2019 issued in F.No.RRU 18/2019-RRU II (Gr-6) issued by the second respondent and quash the same." 48. It is the case of the petitioner that the petitioner was no way connected with import of goods and therefore the impugned order passed pursuant to show cause notice dated 30.06.2015 issued by the third respondent/Additional Director General, Directorate of Revenue Intelligence was without jurisdiction. 49. The Show Cause Notice dated 30.06.2015 bearing reference F.NO.DRI/CZU/VIII/48/ENQ-01/INT-25/2014 was issued by the third respondent/Additional Director General, Directorate of Revenue Intelligence to the petitioner Shri.Farooq Ubaithulla as a co-noticee. 50. The petitioner was called....
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....ad the power to investigate the above mentioned incident and it was unlawful on the part of DRI officials to do a parallel investigation. Further, summons dated 06.02.2015 for his appearance on 13.02.2015 was also issued. He had failed to honour the said summons also, but sent another letter dated 11.02.2015 expressing certain apprehensions. A reply was given to him vide letter dated 17.02.2015 explaining that all his apprehensions were considered and replied to him vide letter dated 09.07.2014 wherein the circumstances under which he was being summoned had been detailed. A summons dated 17.02.2015 for his appearance on 20.02.2015 was also enclosed along with the said letter. The said summons was also not honoured by him. The purpose of dodgining the summons and entering into unwanted and undesired correspondence seemed to drag the proceedings and to brow-beat the officers investigating the case. 109.3. In the above said circumstances, DRI filed a petition under Section 174 IPC with the Hon'ble Additional Chief Metropolitan Magistrate, E.O.I, Egmore and its proceedings are pending before the Hon'ble Court at the time of issue of this Notice. 109.4. Shri Farook Uba....
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....er passed by the first respondent herein as without jurisdiction. Consequently, the impugned recovery notice dated 06.05.2015 is also liable to be quashed. 57. The learned counsel for the petitioner further submits that the respondent in the counter has also admitted that the notices dispatched to the petitioner earlier had returned as un-served. It is therefore submitted that the petitioner cannot be held guilty of latches or for the delay in approaching this Court. 58. It is submitted that the Show Cause Notice dated 30.06.2015 which has culminated in impugned Order-in-Original No.4442 of 2016 dated 30.12.2015 is liable to be quashed in the light of the decision of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021 (376) E.L.T. 3(S.C.). 59. The learned ASG assisted by Mr.V.Sundareswaran, learned Senior Panel Counsel submitted that the Show Cause Notice was issued on 30.06.2015 and the case was adjudicated on 30.12.2015 five years before the aforesaid decision of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021 (376) E.L.T. 3(S.C.). 60. It is submitted that the petitioner was silent after t....
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....mely Import/Export holder Smt.P.Banumathy. It is therefore, submitted that the writ petition should be dismissed with exemplary cost. 65. By way of rejoinder, the learned counsel for the petitioner submits that the impugned order has been challenged by the Import/Export holder namely Smt.P.Banumathy in W.P.Nos.13263 and 13270 of 2021 and that an Interim Order was passed on 25.06.2021 and subsequently the final order was passed on 25.10.2021 wherein the proceedings initiated against the Import/Export holder Smt.P.Banumathy was quashed. It is therefore submitted that in the light of the development since the proceedings against the main noticee has been dropped, the proceedings against the petitioner cannot be sustained. PART- B (TABLE II CASES) CHALLENGE TO IMPUGNED SHOW CAUSE NOTICES: W.P.No.9484 of 202 & W.P.No.9434 of 2021 1- [ M/S.Sneha Glasses Private Ltd. And M/S.Bagrecha Enterprises Ltd.,- Sl.Nos.6 and 7 in Table-II] 66. The petitioners have challenged the impugned Show Cause Notices issued by the Additional Director of Directorate of Revenue Intelligence. The prayer in these Writ Petitions read as under:- W.P.No.9484 of 2021 W.P.No.9434 of 2021 "Wr....
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....me Court in State of Punjab Vs. Bhatinda District Coop. Milk Union Limited 2007 (217) E.L.T. 325 (S.C). 72. The learned counsel for the petitioners have drawn attention to the following cases from the Punjab and Haryana High Court and that of this Court, wherein a similar view was taken and it is therefore submitted that the show cause notice even otherwise is liable to be quashed and therefore adjudication proceedings could not be proceeded. In this connection, reference is made to the following decisions:- i. GPI Textiles Limited Vs. Union of India, 2018 (362) E.L.T (P&H), ii. Mentha & Allied Products Ltd Vs. Commr. Of CGST, Chandigarh 2021 (376) E.L.T. 41 (P&H), iii. Mahalakshmi Traders Vs. Assistant Commissioner of Customs (GR.7B-DEPB), Chennai 2021 (378) E.L.T. 51 (Mad), iv. Swathi Menthol & Allied Chemicals Limited Vs. Commr., GST & C.Ex. Commissionerate, Chandigarh 2021 (378) E.L.T. 110 (P&H) and v. Sushitex Exports (India) Ltd, & Ors Vs. Union of India & Anr, W.P.(L).No.9641 of 2020; vi. Babu Verghese and others Vs. Bar Council of Kerala and Ors, AIR 1999 SC 1281; vii. Commissioner of Customs Vs. Sayed Ali, 2....
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....aph 6 of the Affidavit stated that the petitioner examined the allegations contained in the impugned Show Cause Notice and took legal advice and that all the import transactions were bonafide and truthful and the allegations and enhancement of value by Directorate of Revenue Intelligence (DRI) was arbitrary without any evidence, and decided that they will contest the show cause notice on merits and was ready for adjudication proceedings. It is therefore submitted that the Writ Petition is devoid of merits. 80. By way of rejoinder, the learned counsel for the petitioner submits that the petitioner has not approached the Settlement Commission and therefore that the submissions that case was settled before the Settlement Commission cannot be countenanced. W.P.No.9306 of 2021: [ M/s.SUN NETWORK LIMITED-Sl.No.8 of Table-II] 81. The petitioner has challenged the impugned Show Cause notice dated 19.07.2013 issued by the second respondent Additional Director of DRI, Mumbai seeking to demand customs duty and to appropriate an amount of Rs.60,17,61,981/- paid by the petitioner. Thereafter, no summons were issued by the Office of the second respondent on 05.03.2013. The prayer in the....
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....Kumar Roy, 604, 6th Floor, Western Edge-1, Megathane, Western Express Highway, Borivali (E), Mumbai 400 066 Vs. The Union of India, Rep.by its Secretary ( Revenue) Department of Revenue, Ministry of Finance, North Block, New Delhi 110 001, W.P.No.14126 of 2020". 86. Appearing on behalf of the petitioner, the learned Senior Counsel submits that though the petitioner had replied to the Show Cause Notice and paid a part of the amount 'under protest' and without prejudice to its rights, the issue now squarely stands covered against the revenue in the light of the decision of the Hon'ble Supreme Court in Canon India Private Limited Vs Commissioner of Customs, 2021(376) E.L.T. 3(S.C.) 87. The learned Senior Counsel for the petitioner has also relied on the decision of the Hon'ble Supreme Court in Raza Textiles Limited Vs Income Tax Officer, (1973) 1 SCC 633. A specific reference was made to Paragraph 3 from the said decision to support the case of the petitioner to state that the second respondent cannot assume jurisdiction and deny refund of the amount under protest and without prejudice. 88. It is submitted that the entire proceedings are vitiated and are therefore lia....
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.... the petitioner is stated to be defacto importer. The prayer in this writ petition reads as under: "Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for records pertaining to the impugned Show Cause Notice in F.No.DRI/AZU/CI/ENQ-19(INT01)/2017 dated 23.11.2017 issued by the first respondent herein and to quash the same in view of the judgement rendered by the Hon'ble Supreme Court in the case of Canon India Pvt., Ltd., Vs. Commissioner of Customs in Civil Appeal No.1827 of 2018 dated 09.03.2021." 93. The allegation in the Impugned Show Cause Notice to be mis declaration of the value and correct description. It appears that the petitioner had given submissions which were later retracted and the petitioner was not connected with M/s Johnrose. It further appears M/s Johnrose also earlier had filed Writ Petition and secured an order for provisional release of the goods. 94. It appears that the proprietor of M/s.Johnrose had also retracted his earlier statements given before the DRI by contending that the statement given by him was not voluntary, and that the statement was recorded under duress, coercion and forc....
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....equently direct the respondents to return the goods seized from them as per the Mahazar dated 08.06.2019 100. The impugned Show Cause Notice calls upon the petitioner and others to show cause to the Additional/Joint Commissioner of Customs, Chennai-1V (Group-7H), 60,Rajaji Salai, Chennai-01, as to why: i. The value of Rs.15,36,914/- (Rupees Fifteen Lakhs Thirty Six Thousand Nine Hundred and Fourteen Only), declared in respect of goods imported by them should not be rejected under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules,2007 and redetermined as Rs.1,22,03,964/-(Rupees One Crore Twenty Two Lakhs Three Thousand Nine Hundred and Sixty Four Only) as detailed in Annexure-A to this Show Cause Notice, under sub-section (1) of Section 14 of the Customs Act, 1962 read with Rule 3 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, as applicable: ii. The imported Glass Chatons, Cup Chain and Glue Sheets, as detailed in Annexure-A to this Notice, valued at Rs.1,22,03,964/-(Rupees One Crore Twenty Two Lakhs Three Thousand Nine Hundred and Sixty Four Only) (re-determined value), should not be held liable ....
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....Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021(376) E.L.T. 3(S.C.) and therefore the Show Cause Notice was without jurisdiction. 106. That apart, it is submitted that though the Show Cause Notice was issued on 23.11.2017 and that Section 28(9) of the Customs Act, 1962 has been amended as per which if Show Cause Notice is issued within the normal period of limitation, the Show Cause Notice should be adjudicated within a period of six months from the date of issuance of such notice and in the case of invocation of larger period of limitation 28(4) of the Customs Act, 1962, adjudication should be completed within a period of twelve months from the date of receipt of a copy of the Show Cause Notice. 107. In this connection, the learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Punjab and Haryana High Court in Harkaran Dass Vedpal Vs Union of India, 2019 (368) E.L.T. 546 (P & H) and in Super Oil Company Vs Union of India, 2020 (372) E.L.T. 536 (P & H). 108. The learned counsel for the petitioner submits that after the writ petition was listed for admission on 12.05.2021 and notice was ordered, th....
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....on India Private Limited Vs Commissioner of Customs, 2021 (376) ELT 3(S.C).is not applicable to the notice of the case in as much as the show cause notice that has been challenged in the writ petition has been issued under Section 77 & 124 of the Customs Act, 1962 and not under Section 28 of the Customs Act, 1962. 115. It is further submitted that these Writ Petitions are liable to be dismissed as infructuous in view of the Order in Original passed on 31.12.2021. It is therefore submitted that the petitioners have an alternate remedy before the appellate authority (under customs act) by way of appeal. 116. It is submitted that the interpretation to the expression "Proper Officer" as defined under Section 2(34) of the Customs Act, 1962 which came up for consideration before the Hon'ble Supreme Court in Canon India Private Limited Vs Commissioner of Customs, 2021 (376) ELT 3(S.C).is not applicable to the facts of the case. 117. The learned counsel for the respondent submits that under Section 124 of the Customs Act, 1962, a notice can be issued with an approval from the officers of the Assistant Commissioner of Customs. 118. It is submitted that the expression "Proper....
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....the provisions of Section 28 as it stood immediately before the date on which such assent was received. It is therefore submitted that there is no delay on the part of the respondent in proceeding further with the impugned Show Cause Notice. 124. It is therefore submitted that the order has to be passed within a period of six months or twelve months as the case may be in terms of Section 28(9) of the Customs Act, 1962 is of no avail/consequence as far as the petitioner is concerned. 125. It is the case of the petitioner that the petitioner is a Indian Citizen who returned from Singapore and filed a declaration contemplated under Section 77 of Customs Act, 1962. The petitioner and the copassengers were arrested and the goods namely Gold and Electronic items were seized by the officers even before the petitioner could file declaration between the Customs Department. W.P.Nos.9405 & 9407 of 2021:[ K.Swaminathan & L.Subramanian Sl.No.14 & 15 in Table] 126. The prayer in W.P.Nos.9405 and 9407 of 2021, reads as follows:- W.P.No.9405 of 2021 W.P.No.9407 of 2021 "Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to quash th....
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....notice, as to why: (i) "Viewing Cards" imported by M/s SDTVPL. from Chennai Air Cargo, detailed in Annexure A2, misdeclared as Smart Cards and mis-classified under CTH 85235290 should not be held to be "Parts of Set Top Boxes (CTH 8528)" and appropriately classified under CTH 85299090, as "Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528" of the Customs Tariff.; (ii) it should not be held that they are liable to pay BCD and other applicable duties and taxes on the said Viewing Cards imported by them as detailed in Annexure A2, es applicable under CTH 85299090; and as to why the IGST exemption claimed under notification no. 01/2017 Integrated Tax (Rate) dated 28.06.2017 (at serial No. 382 of Schedule-III), by virtue of mis-classification should not be denied to them: (iii) the said Viewing Cards imported, having an assessable value of Rs. 130,88,15,025/- (One Hundred Thirty Crore Eighty-Eight Lakh Fifteen Thousand Twenty-Five Only), should not be held liable for confiscation (as the goods are not physically available for confiscation) under Sections 111(d), 111(m) and 111(o) of the Customs Act, 1962: (iv) Di....
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....tion of certain provisions) Ordinance, 2020 (2 of 2020) dated 31-3-2020; terms of (viii) the customs duty exemption claimed under Notification No. 46/2011-Customs dated 01.06.2011 (as amended) read with notification no. 189/2009Customs (NT) dated 31.12.2009 (as amended) on the imported Set Top Boxes through Chennai Sea Port, as detailed in Annexure C1 should not be denied; (ix) the imported Set Top Boxes as detailed in Annexure C1, having a total value of Rs. 46,00,10,833/- (Forty-Six Crore Ten Thousand Eight Hundred Thirty-Three Only) should not be held liable for confiscation (as the goods are not physically available for confiscation) under Sections 111(d), 111(m) and 111(o) of the Customs Act, 1962; (x) Differential duty amount of Rs. 11,41,95,552/- (Rupees Eleven Crore Forty-One Lakh Ninety-Five Thousand Five Hundred Fifty-Two Only), arising due to wrong availment of exemption under the said notifications as detailed above, on said imported Set Top Boxes, as detailed in Annexure C1.I should not be recovered from them, in terms of Section 28(4) of the Customs Act, 1962, for the period upto 30.06.2017 and in terms of Section 28(4) of the Customs Act, 1....
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.... writ petitions are disposed of in the aforesaid manner. There shall be no order as to costs. Consequently, connected WMPs are also disposed of closed. Though obvious, it is made clear that this Court has not expressed any view or opinion on the merits of the matter as Hon'ble Supreme Court is in seizen of the review petitions and the fate of the impugned SCNs and consequential orders, if any (wherever applicable) being resuscitated, if that be so will depend on the outcome of the review petitions in the Supreme Court. 129. A reference was also made amendment to Section 4 and 5 of the Customs Act, 1962 vide Finance Act, 1998. W.P.No.27009 of 2020 : [ (Mr.P.Murugesan)-(Sl.No.16 in Table-II)] 130. The petitioner in W.P.No.27009 of 2020 has challenged the impugned Show Cause Notice dated 30.11.2021 issued by the Directorate of Revenue Intelligence (DRI), Chennai in respect of consignment which was originated from Bangalore. The prayer in this writ petition reads as under: "Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for the records pertaining to the impugned Show Cause Notice in F.No.DRI/CZU/VII/48/Enq ....
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....ustoms Act, 1962. It is further submitted that the impugned Notice issued is without jurisdiction and therefore it is liable to be quashed. 137. Opposing the prayer, the learned Additional Government Pleader for the respondent submits that the decision of the Hon'ble Supreme Court has to be read only with the Section 28 of the Customs Act, 1962 and not to other proceedings of the Customs Act, 1962. 138. He further drew attention to Notification 31/97 dated 07.07.1997 by which all Directorate of Revenue Intelligence (DRI) officers are appointed as Customs Officers, provided as under: "... In exercise of the powers conferred by subsection (1) of Section 4 of the Customs Act, 1962 (52 of 1962) and in suppression of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.38/63Customs, dated 1st February, 1963 the Central Government hereby appoints the following persons to be the officers of Customs, namely;-" 4. All Officers of the Directorate of Revenue Intelligence. Under Notification No.17/2002Customs (NT) dated 07.03.2002, in exercise of the powers conferred by sub-section (1) of Section 4 of the Customs Act, 196....
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.... Parliament has employed the article "the" not accidently but with the intention to designate the proper officer who had assessed the goods at the time of clearance. It must be clarified that the proper officer need not be the very officer who cleared the goods but may be his successor in office or any other officer authorised to exercise the powers within the same office. In this case, anyone authorised from the Appraisal Group. Assessment is a term which includes determination of the dutiability of any goods and the amount of duty payable with reference to, inter alia, exemption or concession of customs duty vide Section 2(2)(c) of the Customs Act, 1962." W.P.No.26200 of 2021: [M/s.Bombardier Transportation India LimitedSl.No.17 in Table II] 142. The petitioner has challenged the impugned show cause notice issued by first respondent/Additional Director General, Directorate of Revenue Intelligence dated 19.01.2021 bearing reference F.No.DRI/CRU/VIII/26/ENQ-1/INT-6/2019. The prayer in this writ petition reads as under:- "Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for the records relating to the impugned Show Cause ....
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..... PART- IV -DISCUSSION 148. Though several submissions were made on merits, I am not inclined to go into the merits of the case, as they either pertain to a rate of duty and/or valuation. It would be improper to venture into the issue arising out of rate of duty and valuation under Article 226 of the Constitution of India. 149. High Court in the exercise of its jurisdiction under Article 226 of the Constitution of India should refrain from deciding issues arising out of rate of duty and valuation. As per the scheme of the Customs Act, 1962, among courts it is only the Hon'ble Supreme Court which is vested with the jurisdiction to decide issues arising out of rate of duty and valuation in the exercise of its appellate jurisdiction under Section 130E(b) of the Customs Act,1962. Even the High Court in its appellate jurisdiction is barred from deciding those issues. These issue on merits will have to be adjudicated by a competent officer and thereafter tested before the appellate authorities prescribed under the Customs Act,1962 in case it is held that these writ petitions fail. 150. Issues on merits are best left to be decided by the jurisdictional adjudicating authority a....
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....P.(C) 11721/2021; v. M/s.Alston Transport India Ltd., Rep.by its Authorised Signatory, Gonthina Shankar vs. 1.The Additional Director General, Directorate of Revenue Intelligence, Chennai Zonal Unit, 27, GN Chetty Road, T.Nagar, Chennai 600 017 and Two Others, W.P.Nos34811 of 2019 & etc. batch,; vi. Commissioner of Customs vs. Reliance Industries Limited, 2021 SCC Online Bom 5914 vii. M/s.Schweizer Engineering Laboratories Pvt Ltd., vs. Commissioner of Customs (Import), Customs, Appeal No.51570 of 2019; viii. M/s.Ajanata Overseas, 6/1, Furniture Block, Kirti Nagar, New Delhi vs. The Principal Commissioner of Customs, ICD-Imports, Tughlakabad, New Delhi 110 020. ix. M/s.Godrej & Boyee Manufacturing Co., Ltd., vs. Union of India and Ors., C.M.5413-CWP-2021; x. Kitchen Essentials & ors vs. The Union of India and Ors., 2021(10)TMI 1267; xi. Deepak Gopaldas Bajaj, M/s.Taher Impex Pvt.Ltd., vs. The Commissioner of Customs, Custom House, Tuticorin and two Others, 2021(10) TMI 122 xii. M/s.Steelman Industries vs. Union of India and Others, 2021(8)TMI 1236; xiii. Union of India vs. VICCO Laboratories, 2007(218)....
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....e-adjudicate the case by issuing a proper Show Cause Notice. 159. The Collector of Customs (Preventive) thus issued a Show Cause Notice dated 16.04.1994, to show cause as to why the goods seized should not be confiscated and why the customs duty amounting to Rs.5,07,274/- should not be levied in terms of Section 28(1) of the Customs Act, 1962, by invoking the extended period of limitation and why the penalties under Sections 112(a) and (b)(i) and (ii) of the Customs Act, 1962, should not be imposed on the said importer. 160. The jurisdiction of the Collector of Customs (Preventive) to issue Show Cause Notice was questioned in the reply to the Show Cause Notice by referring to Notification No. 251/83 and Notification No.250/83. The Collector of Customs (Preventive) rejected the submission on the jurisdiction. The demand was thus confirmed by the Collector of Customs (Preventive) vide Order dated 19.08.1996. The matter was taken up before the Tribunal, wherein, it was held that the Commissioner of Customs (Preventive) does not have jurisdiction to issue Show Cause Notice and therefore he did not have the jurisdiction to adjudicate the matter when the imports had taken place wit....
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....law in Commissioner of Customs Vs. Sayed Ali, 2011 (265) ELT 17 (SC) cannot be applied for the period subsequent to 08.04.2011 as Section 17 of the Customs Act, 1962 has under gone a sea change. 165. The observation of the Hon'ble Supreme Court in the above case was also set at knot by an amendment to Section 28 of the Customs Act, 1962 and the validations contained therein vide Customs (Amendment and Validation) Act, 2011. 166. Though the Delhi High Court in Mangali Impex and Ors. Vs. Union of India, 2016 (335) ELT 165 (Del.) has held that the amendment in 2011 was only prospective and not retrospective, the Department preferred an appeal before the Hon'ble Supreme Court. The appeal has to been admitted. The order of the Delhi High Court has been stayed by the Hon'ble Supreme Court in Mangali Impex and Ors. Vs. Union of India, 2017 (349) E.L.T. A98. 167. A reading of the Order of the Tribunal dated 13.02.2020 which was challenged in Commissioner of Customs Kandla vs. Agarwal Metals and Alloys, 2021(378) E.L.T.7 (SC.) shows that the challenge to the proceeding before the Tribunal was not on the ground of jurisdiction. It was purely on merits. 168. The Order ....
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....ction Board or an Officer of Customs under the Act. Otherwise, it is the Central Board of Indirect Taxes and Customs (formerly the Central Board of Excise and Customs) constituted under the Central Board of Revenue Act, 1963, (hereinafter referred to as the Board) which oversees the overall implementation of the union indirect tax laws. In discharge for its function, the Board has constituted the following Directorates:- i. Directorate of Central Excise Intelligence ii. Directorate of Revenue Intelligence iii. Directorate of Inspection (Customs and Central Excise) iv. Directorate of Housing and Welfare v. National Academy of Customs, Excise & Narcotics vi. Directorate of Vigilance vii. Directorate of Systems viii. Directorate of Audit ix. Directorate of Safeguards x. Directorate of Export Promotion xi. Directorate of Service Act xii. Directorate of Valuation xiii. Directorate of Publicity and Publicity Relations xiv. Directorate of Organisation and Personnel Management xv. Directorate of Logistics xvi. Directorate of Legal Affairs ....
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....wn from experienced Senior Customs and Central Excise Officers. It consists of Senior Officers from the Department who are tasked with the duty to safeguard economic interests of the Country. It will be useful to refer to the history of Directorate of Revenue Intelligence (DRI) from their own Website which is extracted as under: "The Central Excise and Customs administration, which was previously deployed during the British Rule mainly for the collection of revenue, was called upon, in the wake of independence, to shoulder the responsibility of guarding the tariff wall along the country's vast coastline and land frontiers. Many handicaps such as want of trained manpower and adequate resources in the form of equipments and absence of precise intelligence made our frontiers more vulnerable to economic exploitation. Added to it was the temptation to evade taxes and controls which was fuelled on account of growing demand for foreign articles which otherwise were subject to high taxation rates and non-tariff barriers on account of the need to foster indigenous industry and to conserve the country's fast dwindling foreign exchange reserves. A need was felt to ha....
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.... guidance of Member (Central Excise) the Bureau took up co- ordination of Inter-Collectorate work against smuggling and helped the Collectorates with experienced personnel in the investigation of major cases. Amongst the more important cases developed wholly or partly with the help of officers of CRIB may be mentioned those of Soirat and Webb who were caught while attempting to export Rs. 2.5 Lakhs in currency, Dana and Frey who attempted to export about Rs. 9 Lakhs in currency through Attari and the un-earthing of the smuggling racket at Jamnagar headed by Talab Haji Hussain and seizure of gold valued at at over Rs. 30 Lakhs, currency of 8 lakhs of rupees and about 25 vehicles including motor cars, auto rikshaws etc. and the current investigation into the seizure of Rs. 1.5 Crores worth of diamonds from Shri Zainal Ali Raza of Bombay. In particular, the mopping up of the smugglers on such a large scale at Jamnagar has virtually broken up a powerful and organized gang, whose activities introduced about six to eight crores of rupees worth of gold every year into the country and export of currency or other goods and services of equivalent value out of it." The Finance Secret....
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....ustoms Act,1962 in the course of the discussion in this order. PART VI - CLASSES OF CUSTOM OFFICER 179. Under Section 3(a) to (i) of the Customs Act , 1962 as it stood till 01.04.2022, the following Officers are among the classes of Officers of Customs:- i. Principal Chief Commissioner of Customs; ii. Chief Commissioner of Customs iii. Principal Commissioner of Customs iv. Commissioner of Customs v. Commissioners of Customs (Appeals) vi. Joint Commissioner of Customs vii. Deputy Commissioner of Customs] viii. Assistant Commissioner of Customs. ix. Such other class of officers of customs as may be appointed for the purpose of this Act. 180. Section 3 of the Customs Act, 1962 has been partially amended vide Finance Act, 2022. Now, the officers from the Directorate of Revenue Intelligence (DRI) and others have been specifically included in the class of Officers of Customs. Sub-clause (i) to Section 3 (Subclause (k) to Section 3 as amended) has to be read in conjunction with sub-clause (2) to Section 4 of the Act. For comparison, both amended and unamended Section 3 of the Customs Act, 1962 are re....
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....s amendment.) 181. Sweeping, changes have been brought to the Customs Act, 1962 by Finance Act, 2022 leaving no scope for any doubt as to status of the officers including the officers from the Directorate of Revenue Intelligence (DRI) as officers of Customs . 182. Section 3(i) and Section 3(k) in the respective column also leave no scope for any doubt as to the other class of Officers of Customs who can also be appointed as Customs Officers for the purpose of the Act. 183. Thus, Group 'B' officers have been recognized as Officers of the Customs in terms of Section 3(i) of the Customs Act, 1962 [presently Section 3(k)]. It is Group 'B' Officers who are appointed under these two sub-Sections. 184. Prior to 08.04.2011, Group 'B' Executive- Gazetted Officers namely the Superintendent of Customs (Preventive) and the Appraiser of Customs were also given the task of making assessment of the Bill(s) of Entry and Shipping Bill(s) under Section 17 and 18 of the Customs Act,1962. 185. Earlier, the Senior officers from the rank of the Assistant Commissioner of Customs were already exercising the power to issue Demand Notice and Show Cause Notices under Se....
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....the Hon'ble Supreme Court followed its earlier decision in Escorts Limited Vs. Union of India, 1998 (97) ELT 211(SC), referred to supra. 189. After 2011 amendment to section 17 of the Customs Act, 1962 with effect from 8.4.2011, it is the Appraisers of Customs and Superintendent of Customs along with Inspectors and Examiners Group 'B' Executive- Non Gazetted officers who continue to be the first interface with an importer filing a Bill(s) of Entry under Section 46 of the Act or an Exporter filing Shipping Bill(s) under Section 50 of the Act for export of goods before clearance. However, after the above amendment there is no assessment of Bill(s) of Entry under Section 46 of the Act or an Exporter filing Shipping Bill(s) under Section 50 of the Act by a "Proper Officer". I shall discuss this in next few paragraphs in Part VIII. PART VII - NOTE ON CADRE IN THE CUSTOMS DEPARTMENT 190. The cadre in the Customs and Central Excise Department (presently the Central Tax Department) consists of Group-A, Group-B, Group-C and Group-D cadre. Officers from the Group-A cadre are under the direct supervision of the Board. 191. Officers from the Group-A cadre are appointed eith....
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....der section 46 of the Customs Act,1962 and/or the Shipping Bill(s) filed under Section 50 of the Customs Act, 1962. 198. The recruitment to the Group 'B' Executive - Gazetted posts is currently entirely by promotion from Group 'B' Executive - Non-Gazetted posts. Inspector of Central Excise is the feeder grade for the grade of Superintendent of Central Excise, while Inspector (Preventive Officer) is the feeder grade for Superintendent of Customs (Preventive). 199. It is the officers from the Group 'B' cadre both Gazetted and Non-Gazetted who are the first interface with the importer or exporter at the time of import or export after these import and export documents are filed. It is they, who examine the Bill(s) of Entry filed under Section 46 and/or or Shipping Bill(s) filed under Section 50 of the Customs Act, 1962. 200.They are in the field and oversee the clearance of the import and export consignments. They have been appointed as officers of customs and further delegated with the powers and function to oversee the clearance of the goods/consignment at the time of export and import. Group 'B' Executive - Gazetted Officers have also been designated as "Pro....
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....be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed. (2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. (3) For the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall prod....
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....cation issued therefor under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the reassessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. [(6) Where re-assessment has not been done or a speaking order has not been passed on reassessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed.] * Explanation.- For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received." * Sub Section 6 to ....
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....ause notice. The "proper officer" at the Port at the time of clearance of import or export, merely reassess the self-assessment already made on the Bill(s) of Entry and/or Shipping Bill(s). They are normally not assigned with the function to adjudicate Show Cause Notices and/or Demand Notices under the various provisions of the Customs Act, 1962. 212. With effect from, 08.04.2011, there was no question of assessment of Bill(s) of Entry /Shipping Bill(s) by a "proper officer". There is only self assessment by an importer or an exporter. There could be only re-assessment of Bill of Entry(s) or the Shipping Bill(s) by the "proper officer" under Section 17 of the Customs Act,1962. 213. If the "proper officer" was inclined to disagree with the self assessment made by an importer or an exporter as the case may be, the "proper officer" could make a re-assessment and pass a speaking order under Section 17(5) of the Customs Act, 1962. 214. If the self assessment is accepted, the "proper officer" appointed under Section 17 of the Customs Act, 1962 becomes "functus officio" under the scheme of the Act and the Notification issued for the aforesaid purpose. 215. Likewise, where ther....
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....orate of Revenue Intelligence (DRI) were mostly confined with the task of investigation. Over a period of time, they were empowered to issue Show Cause Notices and/or Demand Notices under various provisions of the Customs Act. Adjudication of the Show Cause Notices/Demand Notices were however left to the senior officer of customs from Group 'A' cadre of the Customs Department. However, they are empowered to act as "proper officers" not only for issuance of Show Cause Notice and/or Demand Notices but also for adjudication of such Show Cause Notices and/or Demand Notices. 221. The Hon'ble Supreme Court appears to have not been informed about the important changes brought to Section 17 of the Customs Act, 1962 vide Section 38 of the Finance Act, 2011 with effect from 08.04.2011 when it passed its decision in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C.). Section 17 of the Act has undergone further changes. 222. The observation in paragraph 13 of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C.) that "Where one officer has exercised his powers of assessment, the power to o....
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....of Directorate of Revenue Intelligence (DRI) as "Proper Officer" for the purpose of various provisions under the Customs Act, 1962 under Section 2(34) of the Customs Act, 1962. 227. Now Section 2(34) of the Act has also been amended under the Finance Act, 2022. Section 2(34) of the Act together with amendment is reproduced below:- Section 2(34) of the Customs Act, 1962 till passing of Finance Act, 2022 Section 2(34) of the Customs Act, 1962 after amendment vide Finance Act, 2022 "Proper Officer", in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs. "Proper Officer", in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs under Section 5. (Note: The Portion in Bold represents the amendment) 228. Board or the Principal Commissioner of Customs or Commissioner Customs may assign Commissioner of Customs function to be performed under the Act on the such "Officer of Customs"....
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....s.] 235. It must also be noted that it is these Officers of Customs whether under Section 3 or 4(1) of the Act who can be designated as "proper officer" as defined in Section 2(34) of the Customs Act, 1962 by a Notification. Notifications issued under Section 2(34) and 4(1) of the Act is internal arrangement for allocation of work among the officers of customs. PART IX - OFFICERS OF DIRECTORATE OF REVENUE INTELLIGENCE (DRI) ARE ALREADY OFFICERS OF CUSTOMS 236. The officers of the Directorate of Revenue Intelligence (DRI) have already been appointed as "Officers of Customs" under Notification issued under Section 4(1) of the Customs Act, 1962 vide Notification of the Government of India in the Ministry of Finance (Department of Revenue) No.186-Cus, dated 4th August, 1981. The said Notification was later superseded by Notification No.19/90- Cus (N.T.), dated 26.04.1990. 237. By Notification No.19/90- Cus (N.T.), dated 26.04.1990, the officers from the Directorate of Revenue Intelligence (DRI) were appointed as Collectors and Assistant Collectors of Customs in the area mentioned in Column-I of the said notification. 238. Notification No.19/90- Cus (N.T.), dated 26.04.19....
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....s of Customs" under Section 4 of the Customs Act, 1962 and therefore they are "Proper Officers" for the purpose of Section 2(34) of the Customs Act, 1962. This aspect was not brought to the attention of the Hon'ble Supreme Court in Canon India Private Ltd. case referred to supra. 241. With a view to streamline the allocation of work and for the purposes of Section 17 and Section 28 of the Customs Act, 1962, Notification No. 44/2011-Cus. (N.T.), dated 06.07.2011 was issued by the Board under Section 2(34) of the Act. 242. Notification No.44/2011-Cus. (N.T.), dated 06.07.2011 was issued under Section 2(34) of the Customs Act, 1962 for the purpose of identifying officers of customs for exercising the power and function under the Customs Act,1962. 243. Notification No.44/2011-Cus. (N.T.), dated 06.07.2011 was later amended by Notification No.53/2012-Cus. (N.T.) dated 21.06.2012 and still later by Notification No.43/2019-Cus. (N.T.) dated 18.06.2019 and eventually has been rescinded/superseded by Notification No.25/2022-Cus. (N.T.) dated 31.03.2022 in tune with the amendment proposed in the Finance Bill, 2022 and passed by Finance Act, 2022. 244. Among various officers o....
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....r and discharge the duties conferred or imposed on an "Officer of Customs" other than those specified in Section 108 of the Act and Chapter XV deals with the Appeals and Revisions. 250. Section 5 of the Customs Act, 1962 has also been amended in the Finance Act, 2022. Sub-Section (1A), (1B) and Sub-Section (4) and (5) to Section 5 of the Customs Act, 1962 have been now inserted. Section 5 as it stood prior to amendment and as it stands after amendment read as under:- 5. Powers of Officers of Customs of the Customs Act, 1962 Before the amendment Section After the 2022 amendment (1) Subject to such conditions and limitations as the Board may impose, an officer of customs may exercise the powers and discharge the duties conferred or imposed on him under this Act. - 1(A) : 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, 91 who shall be the proper officer in relation to such functions. - (1B) Within their jurisdiction assigned by the Board, the Principal Commissioner of Customs or Commissioner of Customs, as the case may be, may, by order, assig....
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....ification No.40/2012-Cus. (N.T.), dated 02.05.2012 was neither challenged or questioned before the Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C) nor the issue of jurisdiction was canvassed before the Tribunal, the Hon'ble Supreme has held that the officers of the Directorate of Revenue Intelligence were not "Proper Officers" as they are not Officers of Customs and therefore there had to be issue of an independent Notification under Section 6 of the Customs Act, 1962. 255. The view is inspired from its earlier decision in Commissioner of Customs Vs. Sayed Ali and Another, (2011) 3 SCC 537 : 2011 (265) E.L.T. (S.C.). However, the above view was possible only if the device under Section 4 was not available under Section 4 of the Act. It will be useful to refer to Paragraphs 16 to 21 from the Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C.). These paragraphs are reproduced below:- 16. At this stage, we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 28(4) was even a proper officer. The Additional Director General can be considered to....
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....the Customs Act, 1962 (1) (2) (3) 1 Commissioner of Customs (i) Section 33 2 Additional Commissioner or Joint Commissioner of Customs (i) Sub-section (5) of section 46; and (ii) Section 149 3 Deputy Commissioner or Assistant Commissioner of Customs and Central Excise (i) ..... (ii) ..... (iii) ..... (iv) ..... (v) ..... (vi) Section 28;........." 19.It appears that a Deputy Commissioner or Assistant Commissioner of Customs has been entrusted with the functions under Section 28, vide Sl. No. 3 above. By reason of the fact that the functions are assigned to officers referred to in Column (3) and those officers above the rank of officers mentioned in Column (2), the Commissioner of Customs would be included as an officer entitled to perform the function under Section 28 of the Act conferred on a Deputy Commissioner or Assistant Commissioner but the notification appears to be ill-founded. The notification is purported to have been issued in exercise of powers under sub-section (34) of Section 2 of the Customs Act. This section does not confer any powers on any authority to entrust any functions to officers. The subSection i....
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....ideration made is as hereunder :- "16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The Learned Counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that : "28. Notice for payment of duties, interest, etc. - (1) When any duty has not been levied or has been short-levied or erroneo....
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....entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an 'officer of customs' is the 'proper officer'. 20. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions." 23. 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. 256. The observations in paragraphs 11, 12, 13 & 14 are based on the decisi....
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.... of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T. 3 (S.C.) that the officers of Directorate of Revenue Intelligence have already been appointed as "Officers of Customs" under Notification issued under Section 4(1) of the Customs Act, 1962. 263. The Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T. 3 (S.C.) has further stated that such officers of Directorate of Revenue Intelligence had to be entrusted with the function of the "Proper Officer" under Section 6 of the Customs Act, 1962. 264. However, it should be noted that Section 6 of the Act operates in a totally different context. It contemplates entrustment of function of the Board or any Officer of Customs under the Customs Act,1962 on any of the officers specified therein by the Central Government. Such entrustment can be either conditional or unconditional. The powers are of wide. Section 6 of the Act is reproduced below:- "Entrustment of functions of Board and customs officers on certain other officers.-The Central Government may, by notification in the Official Gazette, entrust either conditional....
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....cers for the purpose of Section 2(34) of the Customs Act, 1962. 271. Merely because the Officers of the Customs and Central Excise Department are selected and are deputed in the respective Directorates does not mean that they cease to be Officers of the respective Departments as these Directorates are created only to assist the Board to implement the object of respective fiscal enactments. It is an internal arrangement within the Ministry of Finance, Department of Revenue (DRI). 272. If Section 3 and Section 4 of the Act and the Notification issued thereunder referred to supra were perhaps brought to the attention of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C.), the Hon'ble Supreme Court would have given a different interpretation. In any event, these discussion are academic in the light of the validation in Section 97 of the Finance Act, 2022. 273. It must also be remembered that the "Officers of Customs" in Section 3(1)(a) to (h) of the Customs Act, 1962 (as amended under Section 3(1) (a) to (j) after 2022 amendment) are Officers from Group 'A' Cadre of the Customs Department (IRS) like their count....
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.... amendments during successive Finance Act. The Central Excise Act, 1944, the Customs Act, 1962, Chapter V of the Finance Act, 1994 as also the Income Tax Act, 1961 are no exception. They have undergone several amendments. These changes have a bearing on the law. 280. Therefore, it is important that these are brought to the knowledge of the Court so that the Courts can interpret them and lay down the law to govern the assesse's and Department under the respective tax enactments. 281. If the provision as stood during the period in dispute are not produced for the attention of the Court which is seized of the case, the Courts may by oversight end up giving ratio which are not consistent with the provisions as in force for the period in dispute. 282. As far as recovery of duty not levied or not paid or short levied or short paid or erroneously refunded to a person, the power has been again vested with Senior Officers of Customs as "proper officers" as defined under Section 2 (34) of the Customs Act, 1962 read with relevant Notification referred to supra. 283. The above discussions and observations have been made only with a view to point out certain aspects which appear....
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....ssue such direction as is necessary for the purpose of and in furtherance of the provisions of the Act. The instructions issued by the Board have to be within the four corners of the Act. If, therefore, the Act vests in the Central Excise Officers jurisdiction to issue show-cause notices and to adjudicate, the Board has no power to cut down that jurisdiction. However, for the purposes of better administration of levy and collection of duty and for purpose of classification of goods the Board may issue directions allocating certain types of works to certain officers or classes of officers. The circulars relied upon are, therefore, nothing more than administrative directions allocating various types of works to various classes of officers. These administrative directions cannot take away jurisdiction vested in a Central Excise Officer under the Act. At the highest all that can be said is that Central Excise Officers, as a matter of propriety, must follow the directions and only deal with the work which has been allotted to them by virtue of these circulars. But if an officer still issues a notice or adjudicates contrary to the circulars it would not be a ground for holding that he ha....
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....stoms". 294. The other specified officers in Section 3 are from Group-A Cadre who mostly belong to the Indian Revenue Service (IRS), either appointed by direct recruitment by the Union Public Service Commission (UPSC) or those promoted from Group-B Cadre. 295. Thus, officers from Group-B who are already from the Customs Department can be appointed as "Officers of Customs". Similarly, the Officers of Directorate of Revenue Intelligence (DRI) are appointed as "Officers of Customs" under notification issued under Section 4(i) of the Customs Act, 1962. 296. Apart from the above, the Central Government may by notification can also entrust the function of the Board or any "Officers of Customs" under the Customs Act, 1962, on any other officer from any other department, viz., the Central Government, the State Government or the Local Authority either conditionally or unconditionally. Thus, under Section 6 of the Customs Act, 1962, the powers and functions(duties) of the Board and/or "Officers of Customs" specified in Section 5 read with Section 4 and notifications issued there under to implement the same can be entrusted on these officers. 297. Further, show cause notices issue....
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....propriate orders on merits. 305. It is made clear that in case the respondent(s) want(s) to rely on the statement of person who may have given statement against the petitioner, such person shall be produced for cross examination by the petitioner. 306. In case such person is not available for cross -examination, the respondent shall pass orders on merits by applying the principle of preponderance of probability and decide the case. Needless to state, the petitioner shall be heard before final orders are passed. 307. The respective petitioners are also directed to co-operate with the respective respondents in the de novo proceeding, failing which, the respective respondents are at liberty to pass appropriate orders on merits based on the available material. Rest of directions contained in the above W.P.No.18918 of 2016 will apply mutatis mutandis . 308. Rest of the Writ Petitions in Table-II challenging the impugned Show Cause Notices are dismissed by directing the jurisdictional adjudicating authority to pass appropriate orders on merits and in accordance with law preferably within a period 120 days from the date of receipt of a copy of this order. 309. The respectiv....