2014 (1) TMI 224 - HC - Customs

Validity of summons issued - Power to investigate - Held that - as per the settled legal position in exercise of the writ jurisdiction under Article 226 of the Constitution this Court is not inclined to interfere with the investigation. It is for the Investigating Officer to decide who should be called for investigation - Mr. Nansi has already shown to have produced voluminous record before the Deputy Director on 20 November 2013 i. e. after the letter dated 18 November 2013 of the Deputy Director that the petitioner has been summoned to appear because Mr. Nansi was not cooperating in investigation, the Deputy Director would certainly consider the said record and thereafter decide whether presence of the petitioner is still necessary. However, in case the Deputy Director is of the view that the petitioner s presence is necessary for making enquiries then it is open to the Deputy Director to summon the petitioner. However, having regard to the petitioner s health, it is hoped that the petitioner would not be made to unduly wait after he makes himself available for investigation by the Deputy Director. However, the duration of wait would depend upon the facts and circumstances as they emerge during investigation but we trust that Deputy Director would not make the petitioner wait unduly in view of his health condition - Decided against assessee.

Summary

Issues:
Challenge to summons under Article 226 of the Constitution of India issued by Deputy Director of Revenue Intelligence under the Customs Act, 1962.

Analysis:
1) The petitioner challenged the summons dated 12 November 2013 and 20 November 2013 issued by the Deputy Director of Revenue Intelligence, Mumbai, under Section 108 of the Customs Act, 1962, calling the Chief Financial Officer of a company to appear and provide evidence and documents related to transshipment permits.

2) The petitioner, in response to the summons, explained that he was not connected to the transactions in question and requested withdrawal, citing lack of knowledge and the involvement of another company official who was more familiar with customs matters.

3) The Deputy Director, in a subsequent communication, stated that the company official was not cooperating, leading to the issuance of a second summons. The petitioner reiterated his lack of involvement and mentioned the authorized agent for such matters.

4) The petitioner's counsel highlighted the petitioner's health condition, suffering from cancer and undergoing treatment, arguing that the petitioner could be represented by an authorized agent as per Section 108(3) of the Act, emphasizing the health risks of personal appearance.

5) The respondents opposed the petition, citing precedents against interference in ongoing investigations. The petitioner's counsel referred to a Supreme Court case regarding foreign-going vessels to support their argument.

6) The Deputy Director's claim of lack of cooperation was challenged by the petitioner's counsel, who provided evidence of document submission by the company official. The dispute involved customs duty liability for supplies to rigs operating in specific areas.

7) The Court declined to interfere with the investigation, emphasizing the investigating officer's discretion in calling for inquiries. However, it noted the submissions regarding document production and the petitioner's health condition.

8) The Court directed the Deputy Director to consider the records already submitted by the company official before deciding on the necessity of the petitioner's presence. It emphasized the petitioner's health and urged against undue delays during the investigation.

9) The petition was disposed of with no costs, maintaining the stance of non-interference in the investigation while providing guidance on the consideration of evidence and the petitioner's health concerns.