2016 (8) TMI 709 - HC - Customs

Misuse of advance licence/advance authorisation scheme - proper officers - undue haste in issuance of show cause notice - we do not find any impediment to the Customs Authorities issuing show cause notice on the basis of materials gathered/input received from Excise Authorities. In fact, Custom notification No.31/97 Cus (NT) dated 07.07.1997 and the amendment of Section 28 of Customs Act, 1962 by introduction of sub-section 11 is only indicative of the legislative intent that various wings of revenue act closely and cohesively towards avoiding loss thereof. Central Excise Officers deemed to be Customs Officers had gathered material which forms the basis of the show cause notice. Such Excise officials/ Customs officers are deemed to be proper officers for the purposes of Sections 17 and 28 of the Customs Act, 1962. Thus, when viewed through the prism of Section 28(11) of the Customs Act, 1962, it can be seen that what petitioners are complaining about is what really is in the nature of intra departmental communications, a course not open to them. It is for the company to respond to the show cause notice and satisfy the authority concerned that the allegations against them are unfounded. The contention of the company having met its export obligations with the consequence that it was free to dispose of imported materials is also to be raised only before the authority concerned. We find no merit either in the W.P.(MD) No.626 of 2015 or W.A.(MD) No.705 of 2011. Accordingly, both the writ petition and writ appeal are dismissed. No costs.

Issues Involved:
1. Jurisdiction of the officers to issue the show cause notice.
2. Alleged misuse of the advance licence/advance authorisation scheme.
3. Validity of the show cause notice issued by the Commissioner of Customs, Tuticorin.
4. Authority of Central Excise Officers to investigate customs violations.
5. Compliance with the conditions of the Customs Notifications and Foreign Trade Policy.

Issue-wise Detailed Analysis:

1. Jurisdiction of the officers to issue the show cause notice:
The primary contention was whether the respondents had the jurisdiction to issue the show cause notice. The appellants argued that the respondents were not 'proper officers' under the Customs Act, 1962, and thus lacked jurisdiction. The court noted the amendment to Section 28 of the Customs Act, which introduced sub-section 11, stating that all persons appointed as officers of Customs before 6th July 2011 shall be deemed to have always had the power of assessment and be the proper officers for the purposes of this section. This amendment clarified that the officers in question had the necessary jurisdiction, rendering the appellants' argument invalid.

2. Alleged misuse of the advance licence/advance authorisation scheme:
The Commissioner of Customs, Tuticorin, alleged that the company misused the advance licence/advance authorisation scheme, leading to customs duty evasion of ?399,60,57,592/-. The show cause notice detailed the violations, including the illegal diversion of goods into the domestic market without fulfilling export obligations. The court directed the company to respond to these allegations within two weeks and mandated the Commissioner of Customs to expedite the proceedings.

3. Validity of the show cause notice issued by the Commissioner of Customs, Tuticorin:
The appellants argued that the show cause notice was issued with premeditation and under undue influence from the Commissioner of Central Excise, Tirunelveli. The court found no evidence of premeditation or undue influence, noting that the Commissioner of Customs had sought and received clarifications before issuing the notice. The court upheld the validity of the show cause notice, emphasizing that the company should respond to the notice and address the allegations before the concerned authority.

4. Authority of Central Excise Officers to investigate customs violations:
The appellants contended that Central Excise Officers lacked the authority to investigate customs violations. The court referred to Notification No.31/97-Cus (NT) dated 07.07.1997, which appointed Central Excise Officers as Customs Officers. The court also highlighted the legislative intent for various revenue wings to act cohesively to avoid revenue loss. Thus, the court concluded that Central Excise Officers were competent to investigate customs violations and issue show cause notices based on their findings.

5. Compliance with the conditions of the Customs Notifications and Foreign Trade Policy:
The court examined whether the company complied with the conditions stipulated in Customs Notifications No.91/2004-Cus and No.93/2004-Cus, and the provisions of the Foreign Trade Policy. The show cause notice alleged violations, including the failure to fulfill export obligations and the illegal diversion of goods into the domestic market. The court directed the company to present its defense and evidence to the Commissioner of Customs, who would adjudicate the matter based on the company's response.

Conclusion:
The court dismissed both the writ petition and the writ appeal, finding no merit in the appellants' arguments. The court directed the company to respond to the show cause notice within two weeks and instructed the Commissioner of Customs, Tuticorin, to conduct the proceedings expeditiously. The court emphasized the importance of addressing the allegations through the appropriate legal channels and ensuring compliance with the relevant laws and policies.

← Previous Next →