2022 (7) TMI 1197 - HC - Customs

Seizure of goods - Gold Jewellery - the only allegation against the petitioner is that he did not follow the Standard Operating Procedure (SOP) dated 29.03.2016 - allegation of Advance Authorization Scheme through circular trading of gold jewellery exported under the guise of exhibition from India through hand carry and subsequently smuggling Gold jewellery into India under the garb of reimporting the said jewellery without the required documents and permissions - HELD THAT - It is not in dispute that in certain matters pending before the Supreme Court, challenge has also been laid to the amendments brought about in the Customs Act, 1962 via the Finance Act, 2022. Therefore, this aspect of the matter is also receiving the attention of the Supreme Court. It is relevant to note that in the counter-affidavit filed in the abovementioned writ petition, averments have been made by the respondents, in rebuttal, vis- -vis the SOP dated 29.03.2016. These are captured on page 2 of the counter-affidavit - Although, no rejoinder has been filed, Mr Gautam has attempted to explain that the stand taken by the respondents would not withstand scrutiny. Although a DPC was convened in December 2021, the writ petitioner was not considered. Mr Gautam says that the official respondents could consider the following (i) Expedite the adjudicatory process vis- -vis the writ petitioner, given the fact that the charges against him fall in a narrow compass; (ii) Consider the writ petitioner s representation for convening a Review DPC - Mr Harpreet Singh says that both requests will be considered as per law and having regard to the facts obtaining in the matter. The writ petition can be disposed of.

Summary

Issues:
1. Challenge against show cause notice dated 26.09.2019.
2. Allegations against noticee no.12 for not following Standard Operating Procedure (SOP).
3. Review of responses to RTI applications regarding the inoperability of SOP.
4. Jurisdictional issues raised by private individuals in a separate writ petition.
5. Amendments in the Customs Act, 1962 through the Finance Act, 2022.
6. Impediment in petitioner's service progress due to pending adjudication.
7. Consideration for promotion to Assistant Commissioner post.

Analysis:

1. The writ petition challenges the show cause notice (SCN) dated 26.09.2019, which was later amended on 26.03.2021. The petitioner, noticee no.12, is an official of the respondents and is accused of not following the SOP dated 29.03.2016.

2. The main allegation against noticee no.12 is the failure to adhere to the SOP. The petitioner's counsel argues that the responses to RTI applications demonstrate the SOP's inoperability during the relevant period, supported by shipping bills dated 20.02.2019 and 13.03.2019.

3. A separate writ petition filed by private individuals raises jurisdictional issues regarding the officers' authority to issue the SCN. Reference is made to the Supreme Court judgment in Canon India Private Limited v Commissioner of Customs, 2021 SCC OnLine SC 200, and subsequent amendments in the Customs Act, 1962 through the Finance Act, 2022.

4. The petitioner faces an impediment in service progress due to the pending adjudication of the SCN, affecting promotion prospects to the post of Assistant Commissioner. Despite a DPC convened in December 2021, the petitioner was not considered, leading to concerns about reaching superannuation by 31.10.2023.

5. The petitioner urges expedited adjudication and consideration for a Review DPC. The respondents assure that both requests will be evaluated in accordance with the law and facts of the case. Consequently, the writ petition is disposed of with directions for expeditious handling of the petitioner's promotion representation.

6. The court orders the concerned authority to promptly address the petitioner's promotion representation within three weeks of the order receipt, ensuring the pending application is closed. The respondents are directed to place the representation before the appropriate authority for timely resolution.