2017 (4) TMI 1449 - HC - Customs

Jurisdiction - power of Additional Directorate General Central Excise Intelligence as proper officer to issue the SCN - HELD THAT - Now an order-in-original is already passed. In appeal the petitioners can raise this contention and that can very well be gone into and considered. Yet in this petition filed on 13th July 2016 the order dated 31st March 2016 has been impugned. From the date of institution of this writ petition there is no stay to the order of adjudication. Since one of the points raised in the petition is pending consideration of the Hon ble Supreme Court of India we grant Rule. The interim relief is refused.

Summary

Issues:
Jurisdiction of Additional Directorate General, Central Excise Intelligence under Customs Act, 1962; Validity of show cause notices issued by the Directorate of Revenue Intelligence and Directorate General of Central Excise Intelligence prior to 8th April, 2011; Postponement of admission of petition due to pending matter in Hon'ble Supreme Court of India.

Jurisdiction Issue:
The petition raises a crucial jurisdictional issue concerning the authority of the Additional Directorate General, Central Excise Intelligence to issue show cause notices under the Customs Act, 1962. It relies on a Supreme Court judgment highlighting that officers of this Directorate may not be proper officers for such notices. Despite an amendment to sub-section (11) of section 28 aimed at rectifying this, a Delhi High Court case suggests that the notices issued by these Directorates may still lack validity. The contention is that show cause notices issued by the Commissioner of Central Excise and Customs, based on the same grounds, render the adjudication proceedings null and void.

Validity of Notices Issue:
The matter of the validity of show cause notices issued by the Directorate of Revenue Intelligence and Directorate General of Central Excise Intelligence before 8th April, 2011 is a significant concern. The Delhi High Court's stance that section 28(11) does not validate such notices adds complexity to the issue. The petitioners argue that the show cause notices issued in 2005, 2007, and 2008 by the Commissioner of Central Excise and Customs, albeit on similar grounds, lack jurisdiction due to the involvement of the Directorate officers. The pending decision of the Hon'ble Supreme Court on this matter prompts a request to delay the admission of the petition.

Postponement Issue:
Regarding the postponement of the petition's admission due to the pending Supreme Court decision, the court emphasizes that an order-in-original has already been passed. While acknowledging the technical objection raised concerning the show cause notice's validity, the court clarifies that no interim relief has been granted. The petitioners are advised to address this contention in the appeal process, where it can be thoroughly examined. The court grants Rule in light of the pending Supreme Court consideration but refuses interim relief, maintaining the status quo until further proceedings.

This detailed analysis of the judgment from the Bombay High Court encapsulates the intricate legal issues surrounding jurisdiction, validity of notices, and the procedural aspects related to the pending Supreme Court decision, providing a comprehensive understanding of the case's complexities and the court's considerations.