2019 (1) TMI 735 - HC - Customs

Jurisdiction - power to issue SCN - the order is questioned in this writ petition on the ground that the show cause notices preceding the impugned order were issued by an authority who was not competent to issue the same - Held that - It is true that when the show cause notices were issued by the Additional Director General, DRI, Mumbai, he did not have the authority or jurisdiction to issue the same. But then, Section 28(11) of the Customs Act, 1962 was inserted, where it was held that all persons appointed as officers of Customs under sub-section (1) of section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section - So long as Section 28(11) of the Customs Act, 1962 is holding the field, I am bound to give effect to the same. The writ petition filed by the petitioner questioning the impugned order cannot be allowed - petition dismissed.

Summary

Issues:
Challenge to the authority of the officer issuing show cause notices, Retrospective jurisdiction conferred by legislative amendment, Binding effect of interim orders by the Supreme Court, Applicability of Section 28(11) of the Customs Act, 1962, Alternative remedy of appeal available to the petitioner.

Analysis:
1. The petitioner challenged an order based on show cause notices issued by an authority lacking competence. However, Section 28(11) of the Customs Act, 1962 deems officers appointed before July 6, 2011 to have the power of assessment, retroactively validating their actions.

2. The respondent argued that the Directorate of Revenue Intelligence is part of the Customs department, and the legislative amendment conferring retrospective jurisdiction is valid. Citing a Delhi High Court decision, it was contended that proper assigning of functions is crucial for officers to exercise powers effectively.

3. The Delhi High Court's decision was challenged in the Supreme Court, which issued a stay on its operation. While an interim order does not establish legal precedent, the petitioner sought to rely on a Calcutta High Court case to support their argument.

4. The petitioner highlighted that various Tribunals have deferred decisions pending the Supreme Court's judgment in a specific case. However, the judge emphasized the binding nature of Section 28(11) until declared otherwise, dismissing the petitioner's challenge to the impugned order.

5. The judge held that since the statutory provision in question was not declared void, it must be upheld. The petitioner was granted liberty to pursue an appeal, as they did not contest the merits of the case but sought to defer action pending a Supreme Court decision. The writ petition was dismissed, and no costs were awarded, allowing the petitioner to explore the alternative remedy of appeal.