2013 (1) TMI 857 - HC - Customs

Summary

Issues involved: Validity of show cause notice u/s 28 of Customs Act, 1962 issued by Assistant Commissioner of Customs (SIIB) who was not the proper officer as per section 2(34) of the Act. Applicability of Explanation 2 after sub-section 11 of section 28 only from the date the Finance Bill, 2011 received assent of the President.

The main issue raised in the writ petition is the validity of the show cause notice dated 31.10.2003 u/s 28 of the Customs Act, 1962, issued by the Assistant Commissioner of Customs (SIIB), Special Intelligence and Investigation Branch, who was allegedly not the proper officer as per section 2(34) of the Act. It is contended that Explanation 2 after sub-section 11 of section 28 clarifies that the provisions apply only from the date the Finance Bill, 2011 received presidential assent, and for notices issued before that date, the previous provisions of section 28 would apply. Since the notice in this case was issued in 2003, before sub-section (11) was in effect, its validity is questioned.

There is uncertainty regarding the introduction of Explanation 2 in the statute book and whether it has been passed by Parliament. The respondent's counsel has expressed the intention to seek instructions on this matter. The case is to be renotified on 04.02.2013 for further clarification and proceedings.