2021 (10) TMI 122 - HC - Customs

Jurisdiction - power of Directorate of Revenue Intelligence to issue a SCN under Section 28(4) of the Act - recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted - HELD THAT - It is a settled preposition of law that, normally in tax matters, as against the order-in-original the writ petition would not be entertained unless the appeal remedy is exhausted and the tax payer/assessee can approach the High Court only after exhausting the appeal remedy. However, there are exceptions to the general rule, where, under three circumstances writ petitions are entertained. In the first category, if the principle of natural justice is violated and in the second category if there is any statutory violation and in third category if for want of jurisdiction the order passed by the authorities concerned can be questioned in a writ petition. Here in the case in hand, since the said plea of want of jurisdiction was not raised as there was no such ground was available at the time of filing the writ petitions in the year 2018, however during the pendency of the writ petition law has developed and the Canon India judgment has come in March 2021. After judgment of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT atleast two decisions from this Court as well as the Karnataka High Court on the same point had been rendered, where, in the judgment of the Karnata High Court referred to above, this issue has been extensively discussed and by applying the ratio of Canon India judgment the learned Judge allowed the writ petition stating that the proceedings initiated under Section 28 of the Customs Act by any other officer other than a proper officer shall be vitiated, therefore, the entire proceedings was interfered with and set aside. Since admittedly the Show Cause Notice dated 17.03.2009 was issued by the Additional Director General of Directorate of Revenue Intelligence, Chennai which culminated in the impugned order-in-original dated 28.08.2014, the said proceedings would not stand in the legal scrutiny and therefore, it is liable to be interfered with - Petition disposed off.

Summary

Issues Involved:
1. Jurisdiction of Directorate of Revenue Intelligence (DRI) officials to issue Show Cause Notices under Section 28 of the Customs Act.
2. Validity of proceedings initiated by DRI officials.
3. Applicability of the Supreme Court's decision in Canon India Private Limited case.
4. Exhaustion of appellate remedies before approaching the High Court.

Detailed Analysis:

1. Jurisdiction of Directorate of Revenue Intelligence (DRI) officials to issue Show Cause Notices under Section 28 of the Customs Act:
The core issue revolves around whether DRI officials are "proper officers" under Section 28 of the Customs Act, 1962. The petitioner contended that only a proper officer, specifically appointed by the Central Government, could initiate proceedings under Section 28. The DRI officials, not being appointed as such, lack jurisdiction to issue Show Cause Notices. This argument was based on the Supreme Court's decision in Canon India Private Limited Vs. Commissioner of Customs, which held that the power to recover duties is conferred only on "the proper officer."

2. Validity of proceedings initiated by DRI officials:
The petitioner argued that the Show Cause Notice issued by the Additional Director General of DRI was invalid as it was not issued by a "proper officer." The Supreme Court in Canon India case clarified that the term "the proper officer" refers to a specific officer appointed for the purpose, and not any officer. Consequently, the proceedings initiated by DRI officials were without jurisdiction and hence vitiated. The court relied on this precedent to quash the proceedings initiated by the DRI officials.

3. Applicability of the Supreme Court's decision in Canon India Private Limited case:
The petitioner heavily relied on the Canon India judgment, where the Supreme Court held that DRI officials are not proper officers under Section 28 of the Customs Act. The court noted that this decision was binding and applicable to the present case. The Karnataka High Court in a similar case (Sri Mohan C. Suvarna Vs. The Principal Commissioner of Customs) also applied the Canon India judgment, setting aside proceedings initiated by DRI officials. The court in the present case found no reason to deviate from this established legal position.

4. Exhaustion of appellate remedies before approaching the High Court:
The respondent argued that the petitioners should have exhausted their appellate remedies before approaching the High Court. However, the court noted that exceptions exist where writ petitions can be entertained directly, especially in cases of jurisdictional errors. The court held that the issue of jurisdiction can be raised at any stage, and the petitioners were entitled to challenge the proceedings directly in the High Court. The court distinguished this case from the Sri Sathya Jewellery case, where the petitioners had not exhausted their appellate remedies, emphasizing that the jurisdictional challenge was valid regardless of the procedural stage.

Conclusion:
The court concluded that the Show Cause Notices issued by the Additional Director General of DRI were without jurisdiction and thus invalid. The proceedings initiated based on these notices were quashed. The court allowed the respondents to take appropriate actions under the Customs Act, considering the legal principles established by the Supreme Court in the Canon India case. The writ petitions were ordered accordingly, with no order as to costs.