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TMI Blog2016 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 SONY INDIA PRIVATE LIMITED K.S.TRADERS SENNHEISER ELECTRONICS INDIA PVT LTD COMET IMPEX RAJESH GUPTA DAIKIN AIRCONDITIONING INDIA PRIVATE .LTD. GODREJ AND BOYCE MANUFACTURING CO. LTD. CORTEL INDIA EASTRON OVERSEAS INC DIVYA ELECTRONICS RAJESH TRIPATHI M/S LAKSHMAN OVERSEAS AND ORS M/S PACE INTERNATIONAL & ANR. BHARAT SANCHAR NIGAM LIMITED SATYAM MARKETING THROUGH: ITS PROPRIETOR MANOJ SABOO @ MANOJ MAHESHWARI HANSRAJ BHATIA & CO. THROUGH: ITS PROPRIETOR SHRI SANJEEV BHATIA M/S. J.R. INTERNATIONAL BHAGWATI COMPONENTS MFG.CO. THROUGH: ITS DIRECTOR MR. SURJIT SINGH JUDGMENT Dr. S. Muralidhar, J. Introduction 1. The common question in this batch of matters pertains to the constitutional validity of Section 28 (11) of the Customs Act, 1962 ("Act") which was inserted by the Customs (Amendment and Validation) Act, 2011 ("Validation Act, 2011") with effect from 16th September 2011. In terms of Section 28 (11) of the Act, all persons appointed as Customs Officers under Section 4 (1) of the Act prior to 6th 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....." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "proper officer" becomes relevant for the purpose of assessment of duty under Section 17, provisional assessment of duty under Section 18, the exercise of the power to issue SCN under Section 28 where there has been non-levy, short-levy or erroneous refund of customs duty or where any interest payable has not been paid or part-paid or erroneously refunded. It is only a proper officer who can exercise jurisdiction under the above provisions and certain other provisions which explicitly state that the powers therein are to be exercised only by a proper officer. 9. In order to determine which of the officers of the customs are "proper officers" one has to necessarily examine, in terms of Section 2 (34) of the Act, whether such "proper officer" has been assigned those functions by the CBEC or the Commissioner of Customs. Section 28 of the Act as it stood prior to the recasting of the entire Section 28 by the Validation Act, 2011, reads as under: "28. Notice for payment of duties, interest, etc. (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) in case any duty has not been levied or has been short-levied, or the interest has not been paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, where it is possible to do so, shall determine the amount of such duty or the interest, within a period of one year: and (2) in any other case, where it is possible to do so, shall determine the amount of duty which has not been levied or has been short-levied or erroneously refunded or the interest payable which has not been paid, part paid or erroneously refunded, within a period of six months, from the date of service of the notice on the person under sub-section (1). (2B) Where any duty has not been levied, or has been short-levied or erroneously refunded, or any interest payable has not been paid, part paid or erroneously refunded, the person, chargeable with the duty or the interest, may pay the amount of duty or interest before service of notice on him under sub-section (1) in respect of the duty or the interest, as the case may be, and inform the proper officer of such payment in writing, who, on receipt of such inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s charged with having misused the Export Passbook Scheme by selling goods cleared duty free in the open market or selling the passbook on premium in violation of the ITC restriction imposed on such sale. The investigations in the matter were conducted by the Marine and Preventive Wing of the Customs. 12. On 28th August 1991, the Assistant Collector of Customs (Preventive), Mumbai issued to Respondent No. 2 firm as well as Respondent No. 1, Sayed Ali alleging violation of the provisions of Section 111 (d) of the Act. This was followed by an adjudication order being passed on 3rd February 1993 by the same Officer who issued the SCN, i.e., Assistant Collector of Customs (Preventive), confirming the demands raised in the SCN. Aggrieved by the above order, the Respondents preferred an appeal before the Collector of Customs (Appeals). By an order dated 14th December 1993 the Collector of Customs (Appeals) allowed the appeal of the Respondents by holding that since the subject matter involved a demand of duty beyond a period of six months, the SCN was required to be issued by the Collector, and not by the Assistant Collector. Nevertheless, the Collector (Appeals) granted liberty to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department before the Supreme Court was that once the Commissioner (Preventive) had been appointed as Collector of Customs (Preventive), Bombay by virtue of Notifications Nos. 250/83 and 251/83, issued by the Central Government under Section 4 of the Act, the Commissioner (Preventive) became "proper officer" in terms of Section 2 (34) of the Act and was, therefore, competent to issue an SCN under Section 28 of the Act since the goods were cleared for home consumption in Bombay. Inter alia reliance was placed on the decision of the Supreme Court in Union of India v. Ram Narain Bishwanath (1998) 9 SCC 285 and the larger bench of the Tribunal in Konia Trading Co. v. Commissioner of Customs (2004) 170 ELT 51 (Tri.) and another decision of the Tribunal Manohar Bros. (Capacitors) v. Collector of Customs-II, Bombay 1998 (98) ELT 821 (Tri), which attained finality by the dismissal of the Revenue"s appeal by the Supreme Court in CCE & Customs v. Manohar Bros. (Capacitors) (2011) 3 SCC 580. 17. The Supreme Court, after analysing the relevant provisions of the Act including the definition of "proper officer" under Section 2 (34) of the Act, observed as under: "It is clear from a mere loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve), etc. to be the Collector of Customs for Bombay, Thane and Kolaba Districts in the State of Maharashtra did not ipso facto confer jurisdiction on him to exercise power entrusted to the "proper officers" for the purpose of Section 28 of the Act." 19. The Supreme Court rejected the contention of the Department that the source of power to act as "proper officer" was Sections 4 and 5 of the Act and not sub-section (34) of Section 2 of the Act. The Supreme Court observed that Sections 4 and 5 "merely authorise the Board to appoint officers of Customs and confer on them the powers and duties to be exercised/discharged by them, but for the purpose of Section 28 of the Act, an officer of Customs has to be designated as "proper officer" by assigning the function of levy and collection of duty, by the Board or the Commissioner of Customs. The argument is rejected accordingly." 20. The Supreme Court also distinguished the earlier decision in Ram Narain Bishwanath (supra) stating that none of the statutory provisions were considered in that case and that "the issue arising for consideration in the present appeals was not the subject matter therein. Thus, the said decision is of no avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n so levied or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of,- (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under section 28AA or the amount of interest which has not been so paid or part-paid. (2) The person who has paid the duty along with interest or amount of interest under clause (b) of sub-section (1) shall inform the proper officer of such payment in writing, who, on receipt of such information shall not serve any notice under clause (a) of that sub-section in respect of the duty or interest so paid or any penalty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest. (3) Where the proper officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated therein; or (ii) that the duty with interest and penalty that has been paid falls short of the amount actually payable, then the proper officer shall proceed to issue the notice as provided for in clause (a) of sub-section (1) in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of one year shall be computed from the date of receipt of information under sub-section (5). (7) In computing the period of one year referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), the period during which there was any stay by an order of a court or tribunal in respect of payment of such duty or interest shall be excluded. (8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any, made by such person, determine the amount of duty or interest due from such person not being in excess of the amount specified in the notice. (9) The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice in respect of case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that for any non-levy, short-levy or erroneous refund prior to the date on which the Finance Bill, 2011 receives assent of the President, it should continue to be governed by the provisions of Section 28 as it stood immediately prior to the date on which such assent is received. In other words any non-levy, short-levy or erroneous refund prior to 6th July 2011 would be governed by the un-amended Section 28. The 6th July 2011 Notification 26. On 6th July 2011 itself, Notification No. 44 of 2011-Customs was issued which purportedly designates "proper officer" for the purpose of Sections 17 and 28 of the Act. The said notification reads as under: "In Exercise or the powers conferred by sub-Section (34 of Section 2 of the Customs Act, 1962 (52 of 1962), the Central Board of Excise and Customs hereby assigns the functions of the proper officer to the following officers mentioned in column (2) of the Table below, for the purposes of Section 17 and 28 of the said Act, namely: Table Sl. No. Designation of the officers (1) (2) 1. Additional Director Generals, Additional Directors or Joint Directors, Deputy Directors or Assistant Directors in the Directorate General of Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as those of the Commissionerates of Customs (Preventive), Directorate General of Revenue Intelligence and others, who were not specifically assigned the functions of assessment and re-assessment of customs duty may be construed as invalid. The result would be huge loss of revenue to the exchequer and disruption in the revenue already mobilized in cases already adjudicated. However, having regard to the urgency of the matter, the Government issued notification on 6th July, 2011 specifically declaring certain officers as proper officers for the aforesaid purposes. 3. In the circumstances, it has become necessary to clarify the true legislative intent that Show Cause Notices issued by Customs officers, i.e., officers of the Commissionerates of Customs (Preventive), Directorate General of Revenue Intelligence (DRI), Directorate General of Central Excise Intelligence (DGCEI) and Central Excise Commissionerates for demanding customs duty not levied or short levied or erroneously refunded in respect of goods imported are valid, irrespective of the fact that any specific assignment as proper officer was issued or not. It is, therefore, purposed to amend the Customs Act, 1962 retro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 28 of the said Act." Petitions in this Court 32. Two things happened after the issuance of the above instructions. One was that the adjudication proceedings in terms of the SCNs already issued prior to 6th July 2011, even by the DRI, and DGCEI continued on the strength of the above amendment. Consequently, as in the case of Sony India Private Limited [Writ Petition (Civil) No. 8196 of 2013], for instance, an SCN came to be issued on 12th/15th April 2013 by the DRI in respect of the period even prior to 6th July 2011, i.e., from 1st April 2008 onwards. In Writ Petition (Civil) No. 441 of 2013 (Mangali Impex Limited) the Court passed the following order on 28th January 2013: "The main issue sought to be raised in this writ petition is that the show cause notice dated 31st October 2003 issued under Section 28 of the Customs Act, 1962 has been issued by the Assistant Commissioner of Customs (SIIB), Special Intelligence & Investigation Branch who, according to the Petitioner, was not the proper officer in terms of the said Act and in particular the provisions of Section 2 (34) of the said Act. It has also been contended by the learned counsel for the Petitioner that Explanation 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, that order shall not be given effect to until further directions from this Court." 34. Similar interim orders permitting the proceedings to go on but that the adjudication shall not be given effect to, were passed in each of the writ petitions. 35. On behalf of the Petitioners, arguments have been addressed by Mr. V. Lakshmi Kumaran, learned counsel, Mr. C. Hari Shankar and Mr. Arshad Hidyatullah, learned Senior counsel, Mr. Rajesh Mahna and Mr. Naveen Malhotra, learned counsel. On behalf of the Respondents, Mr. S.K. Dubey, learned counsel for the DRI, Mr. Satish Kumar and Mr. Rahul Kaushik, learned counsel for the Customs have addressed arguments. Submissions of counsel for the Petitioners 36. The submissions on behalf of the Petitioners could be summarized as under: (i) The amendment by which Section 28 (11) of the Act was introduced does not cure the defects pointed out in Sayed Ali (supra). Relying on the decisions of the Supreme Court in Delhi Cloth & General Mills Co. Limited v. State of Rajasthan (1996) 2 SCC 449 and State of Haryana v. Karnal Co-op Farmers Society Limited 1993 (2) SCC 363, it was submitted that Section 28 of the Act confers such powers of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Amendment and Validation) Act, 2011 which validates the past actions/SCNs. (v) The impugned SCNs purport to empower the DRI, DGCEI to issue SCNs even for the period prior to 8th April 2011 and therefore, those SCNs were without jurisdiction and void ab initio. Section 28 of the Act confers authority on "the proper officer" and not "a proper officer" or "any proper officer". Relying on the decisions in Consolidated Coffee Limited v. Coffee Board (1980) 3 SCC 358 and Shri Ishar Alloys Steels Limited v. Jayaswals Neco Limited (2001) 3 SCC 609, it was submitted that the use of the definite article "the" is very significant as opposed to "an" or "any". Only those officers who have been assigned the functions of "the proper officer" for the purposes of Section 17 (Assessment of bill of entry) will be considered as "the" proper officer for Section 28 of the Act. (vi) Without prejudice to the above submissions, it was contended that once a particular officer exercises jurisdiction, it would exclude the jurisdiction of all the other officers. Reliance was placed on the decisions in India Household and Healthcare Limited v. LG Household and Healthcare Limited (2007) 5 SCC 510 and Kenapo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided the validating legislation removes the cause of invalidity or the basis that had led to those decisions. It was submitted that inadvertent defects in statutes should be permitted to be corrected by the legislature through the device of "small repairs". There is no vested right in any of the Petitioners, as a result of the decision of the Supreme Court in Sayed Ali (supra). Reliance was placed on the following passage in Craies on Statue Law (7th Edition) where it is stated "If a statue is passed for the purpose of protecting a public against some evil or abuse, it may be allowed to operate retrospectively although by such operation, it will deprive some person or persons of a vested right. Thus, public interest at large is once again relevant consideration in determining the constitutional validity of a retrospective legislation." 41. It is submitted by the Respondents that a combined reading of Explanation 2 to Section 28 of the Act and the retrospective amendment brought about by Validation Act, 2011 would reveal that all the past cases where the SCN had been issued under Section 28 of the Act by any officer appointed as officer of Customs, prior to 6th July 2011 stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-obstante or clarificatory provisions that can be enacted. For e.g., Section 18 (1) of the Act opens with the words "notwithstanding anything contained...". Section 12 of the Act opens with the words "except as otherwise provided in this Act, or any other law for the time being in force, duties of customs ..." Section 28A opens with the words "notwithstanding anything contained in this Act". As far as Section 28AA is concerned, it begins with a non-obstante clause that encompasses not only any judgment, decree, order, or direction but "in any provision of this Act or the rules thereunder". It is therefore, conscious that the decision taken by the legislature was to overcome the defects pointed out in a judgment. 46. Section 28 (11) of the Act opens with a non-obstante clause which overrides 'anything to the contrary contained in any judgment, decree or order of any court' but does not override any other provisions of the Act or any other Act for the time being in force. In other words Section 28 (11) neither explicitly or implicitly seeks to overcome the legal position brought about by Explanation 2 which states that non-levy, short-levy or erroneous refunded prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper officer to the Additional Director of DRI". It held that the Notification dated 6th July 2011 refers to Section 17 and 28 of the Act and therefore there was no force in the argument that DRI was not competent to issue the SCN. 49. The judgment in Sunil Gupta v. Union of India (supra), proceeds on the basis of the effect of Section 28(11) of the Act and that it has been given retrospective effect. The judgment does not consider the apparent conflict between Section 28 (11) of the Act on the one hand and Explanation 2 to Section 28 of the Act on the other hand. It proceeds on the basis that Section 28 (11) validates all actions taken prior to 8th April 2011 and that Section 28 (11) is a valid exercise of legislative power. 50. In dealing with Explanation 2, the Bombay High Court observed: "the Explanation 2 clarifies that they will proceed in terms of the un-amended provision. The position dealt with by insertion of Section 28(11) is distinct and that is about competence of the officer". There was no attempt made at reconciling the contradictory positions emerging from Explanation 2 to Section 28 and Section 28(11) of the Act. In the considered view of the Court, the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been a "deemed assignment of that power. Clearly, such power of assessment has to be in relation to a territorial or pecuniary jurisdictional limit. The scope of the Validation Act 54. In this context a brief discussion of what a validation legislation is expected to do is required to be examined. It is perfectly possible and valid for the legislature to remove the defect pointed out by the Court which examines and pronounces on the constitutional validity of a statute. In The Assistant Commissioner of Urban Land Tax v. The Buckingham and Carnatic Co. Ltd. 1969 (2) SCC 55, a Constitution Bench of the Supreme Court explained that in order to remove the defects pointed out, the legislature can make what has been called "small repairs". The Court pointed out that giving retrospective effect to such curing of the defect "outweighs the individual"s interest in benefitting from the defect". In that case, the imposition of tax retrospectively by enacting the Madras Urban Land Tax Act, 1966 after removing the defect pointed out while striking down an earlier version of the Act was held to be not unreasonable. 55. However, what is essential is that the defect pointed out must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing words: "14. ...It is well settled that Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them and subject to some constitutional limitations, can legislate prospectively as well as retrospectively. This power to make retrospective legislation enables the legislature to validate prior executive and legislative Acts retrospectively after curing the defects that led to their invalidation and thus makes ineffective judgments of competent courts declaring the invalidity. It is also well settled that a validating Act may even make ineffective judgments and orders of competent courts provided it, by retrospective legislation, removes the cause of invalidity or the basis that had led to those decisions." ... "25. ...[I]t is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would no more be possible for the Court to arrive at the same verdict. In other words, the very premise of the earlier judgment should be uprooted, thereby resulting in a fundamental change of the circumstances upon which it was founded." 58. In Virender Singh Hooda v. State of Haryana (2004) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the new meaning binding upon the Courts. None of these methods has been adopted in the present case. See Prithvi Cotton Mills Ltd. v. Broach Borough Municipality". 61. Keeping the above principles in mind when Section 28 has been re-casted by Act 8 of 2011 with effect from 8th April 2011 read with Section 28(11) which was introduced by the Customs (Amendment and Validation) Act, 2011 with effect from 16th September 2011, the position that emerges is as under: (i) Section 28(11) states that all persons appointed as Customs Officers prior to 6th July 2011 will be deemed to always have had the power of assessment under Section 17 and shall be deemed to always have been "proper officers". Further, this is notwithstanding anything to the contrary in any judgment, decree or order of any Court of law. While the said provision is intended to overcome the defect pointed out in the decision of the Supreme Court in the Sayed Ali case, Section 28 (11) of the Act does not state that it would operate notwithstanding anything contained either in the Act or any other Act for the time being in force. In other words, the legislature has not made it explicit that Section 28(11) would prevail notw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the decision in Sri Balaji Rice Company v. Commercial Tax Officer (supra). In that case, the challenge was to the validity of a government order issued by the Government of Andhra Pradesh whereby Assistant Commissioners and Commercial Tax Officers (Intelligence) were empowered to exercise powers of assessment over the entire State of Andhra Pradesh. In other words, the powers are not restrictive to serve local areas in respect of which under Section 4 of the Andhra Pradesh General Sales Tax Act, 1957, they could exercise powers. It was in the above context the Andhra Pradesh High Court observed that "If plurality of officers are invested with the powers of assessing the same dealer, it will result in great hardship and inconvenience to the dealers in travelling to the offices of different officers and producing accounts before different officers and will greatly handicap the dealers in making their representations and it will also lead to conflicting and contradictory orders of assessment". Accordingly, the Notification allocating jurisdiction to the Assistant Commissioners and Commercial Tax Officers (Intelligence) over the entire State of Andhra Pradesh were held to be ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given retrospective effect does not solve the essential problem pointed out by the Supreme Court in the Sayed Ali case, which is the absence of the assigning of functions to "proper officers" under Section 2(34) of the Act. The even more serious problem is the impossibility of reconciling two contradictory provisions, viz., Explanation 2 to Section 28 and Section 28(11) of the Act. 67. The words 'this Section' in the newly inserted sub-section (11) of Section 28 obviously refers to Section 28 as enacted with effect from 8th April 2011 and not the Section 28 which existed prior to that date. The effect of Section 28(11) is to treat all officers of the Customs to be "proper officers" only for the purposes of new Section 28 of the Act and not the earlier Section 28 of the Act. In particular, there is no validation of the SCNs issued prior to the amendment of Section 28 of the Act. As observed in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan (supra), a legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. The past actions of the officers of the DRI and DGCEI who are not designated as "proper officer" in issuing SCNs for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a wide range of officers, not limited to customs officers, without any limits as to territorial and subject matter jurisdiction and in such event the provision would be vulnerable to being declared unconstitutional. 70.3 As regards the period subsequent to 8th April 2011, it is evident that if the administrative chaos as envisaged by the Supreme Court in Sayed Ali (supra) should not come about, there cannot be any duplicating and/or overlapping of jurisdiction of the officers. It would have to be ensured through proper co-ordination and administrative instructions issued by the CBEC that once a SCN is issued specifying the adjudicating officer to whom it is answerable, then that adjudication officer, subject to such officer being a 'proper officer' to whom the function of assessment has been assigned in terms of Section 2 (34) of the Act, will alone proceed to adjudicate the SCN to the exclusion of all other officers who may have the power in relation to that subject matter. 70.4 The question as to the constitutional validity and effect of Section 28 (11) of the Act is answered accordingly. 71. The Court next turns to the individual cases. Sony India Pvt. Ltd. 72. Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n drawn from 27 consignments of Calcium Stearate that were exported by the Petitioner as well as J.K. Impex between November 1998 and January 1999. The Special Intelligence and Investigation Branch ("SIIB"), which is a unit of the Customs Department, raided the premises of the Petitioner and the residence of its Director on 9th August 2000 on the basis that the export consignment was of Calcium Carbonate and not Calcium Stearate. The Director of the Petitioner was taken into custody and series of investigations and criminal cases ensued. Later on 3rd February 2006, a closure report filed by the Central Bureau of Investigation ("CBI") was accepted by the concerned Court. 79. As far as the SCN issued to the Petitioner by the Assistant Commissioner of Customs, SIIB was concerned, a petition being Writ Petition (C) No. 4167/2011 was filed in this Court challenging it. One of the main grounds urged therein was that the officer who issued the SCN was not properly authorised to do so. The said writ petition was disposed of by recording statement of learned counsel for the Petitioner that he has no objection if the assessment proceedings are taken to their logical conclusion. 80. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erseas 84. The challenge in Writ Petition (C) No. 1185/2013 by M/s. Lakshman Overseas, M/s V-4 Manufacturing Co., M/s Everest Exports and Mr. Ashwani Aggarwal is to an impugned SCN dated 30th April 2010 issued to the Petitioner by the ADG, DRI, Delhi pursuant to a search conducted at the residential premises of Petitioner No.4 Mr. Ashwani Aggarwal on 8th September 2005. 85. In the petition there is also a challenge to a subsequent notice issued to Petitioner No. 4 on 12th February 2013 asking him to attend the hearing pursuant to the above SCN. The challenge to the SCN is essentially on the ground that Respondent No. 3 was not authorised to issue such SCN as he was not a "proper officer" within the meaning of Section 2(34) of the Act. 86. By the order dated 22nd February 2013 while issuing notice in the present petition, the Court directed that the adjudication order will not be given effect to. 87. A counter affidavit has been filed in the present writ petition where it is denied that at the time when the SCN was issued i.e. 30th April 2010, the ADG, DRI was not assigned the function of assessment under Section 17 and reassessment under Section 28 of the Act and was, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, the Court quashes the impugned SCN dated 9th March 2011 and the subsequent Circular dated 23rd September 2011 issued by the Department consequent upon the enactment of Section 28 (11) of the Act. Writ Petition (C) No. 7383/2013 and the pending application, if any, are disposed of in the above terms. K.S. Traders 97. The challenge in Writ Petition (C) No. 211/2014 by M/s. K.S. Traders is to a SCN dated 30th January 2004 issued by the ADG, DRI to the Petitioner alleging over invoicing and recovery of draw back under Rules 16 and 16-A of the Customs & Central Excise Duty Draw Back Rules, 1995 read with Sections 75(1), 76(1) (b) and 75-A(2) of the Act. 98. This was in relation to export of readymade garments made by the Petitioner to Russia in the period between June 1999 and June 2002. It is not in dispute that at the time impugned SCN was issued, the ADG, DRI who issued it, was not a "proper officer" in terms of Section 2(34) of the Act as well as for the purposes of Section 28 of the Act. 99. For the aforementioned reasons, the Court quashes impugned SCN dated 30th January 2004 and all proceedings consequent thereto. Writ Petition (C) No. 211/2014 and the pending appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25/2014 and the pending application, if any, are disposed of in the above terms. Sennheiser Electronics India Pvt. Ltd. 107. The SCN under challenge in Writ Petition (C) No. 863/2014 by Sennheiser Electronics India Pvt. Ltd. is dated 24th December 2011 and was issued by the ADG, DRI in relation to alleged short levy of customs duty for the period 28th January 2011 to 28th February 2013. 108. For the reasons already mentioned, the said SCN and all the proceedings consequent thereto for the period from 28th January 2011 up to 8th April 2011 cannot be sustained in law and are hereby quashed. The adjudication proceedings as regards further period beyond 8th April 2011 will proceed in accordance with law. 109. Writ Petition (C) No. 863/2014 and the pending application, if any, are disposed of in the above terms. Comet Impex 110. The challenge in Writ Petition (C) No. 3803/2014 by M/s. Comet Impex is to an impugned SCN dated 31st October 2008 issued by the ADG, DRI, Delhi to the Petitioner in relation to reassessment of imported goods during the period prior to 8th April 2011. The challenge is also to the impugned Circular No. 44/2011-Cus dated 23rd September 2011 issued consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with law. 121. Writ Petition (C) No. 5877/2014 and the pending application, if any, are disposed of in the above terms. Godrej and Boyce Manufacturing Co. Ltd. 122. The prayer in Writ Petition (C) No. 4162/2015 filed by Godrej and Boyce Manufacturing Co. Ltd. is inter alia to the SCN dated 2nd April 2009 issued by the DRI and for declaring Section 28(11) of the Act to be constitutionally invalid. Reference is made to the decision of the Supreme Court in Sayed Ali (supra). 123. It is not in dispute that at the time the SCN was issued, the DG, DRI or any other officer of the DRI was not specifically assigned the task of reassessment and, therefore, was not a "proper officer" under Section 2(24) of the Act. Accordingly, the impugned SCN and all proceedings consequent thereto are hereby quashed. 124. Writ Petition (C) No. 4162/2015 and the pending application, if any, are hereby quashed. Satyam Marketing Through: Its Proprietor 125. The challenge in Writ Petition (C) No. 4841/2015 by M/s. Satyam Marketing is to an SCN dated 2nd December 2013 issued by the ADG, DRI to the Petitioner in relation to 190 bills of entry for the period prior to 8th April 2011. A list of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 041/2015 and the pending application, if any, are disposed of in the above terms. Cortel India 136. The challenge in this Writ Petition (C) No. 11285/2015 by Cortel India is to a SCN dated 9th June 2014 issued by the ADG, DRI invoking Section 124 of the Act and Section 28 read with Section 9A of the Customs Tariff Act, 1975 in relation to the imports of Color Picture Tubes made through the ICD, Tughlakabad as well as ICD, Dadri for the period May 2009 to January 2011. 137. For the reasons already mentioned, the said impugned SCN and all proceedings pursuant thereto are unsustainable in law and are hereby quashed. 138. Writ Petition (C) No. 11285/2015 and the pending application, if any, are disposed of in the above terms. Bhagwati Components Manufacturing Co. through its Director Mr. Surjit Singh 139. The challenge in this Writ Petition (C) No. 11806/2015 by Bhagwati Components Manufacturing Co. is to an SCN dated 10th September 2004 issued by the ADG, DRI in relation to the alleged mis-declaration of value of export of Alloy Steel Forgings (Machined) from ICD, Tughlakabad and CFS, Patparganj by the Petitioner for the purpose of availing higher DEPB credit for the period prio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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