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TMI Blog2016 (9) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice issued by the Joint Director-DRI is without jurisdiction - appeal allowed - decided in favor of appellant. - Appeal No. C/502/2007-CU[DB] - Final Order No.71057/2016 - Dated:- 2-8-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Ms. Surabhi Sinha Shri Kumar VikrAm, Advocates for the Appellant Shri M. K. Mall Asstt. Commissioner, (A.R.) for the Department ORDER Per Mr. Anil Choudhary The appellant has preferred the present appeal against Order-in-Appeal dated 31.05.2007 passed by Commissioner (Appeals) Central Excise, Kanpur. 2. The brief facts are that a show cause notice was issued on 04.07.2006, under Section 28(1)(b) read with Section 124 of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Additional Director, Directorate of Revenue Intelligence was not the proper officer under Section 28 of the Customs Act, for issuing notice or show cause. It is further contended that the proper officer under Section 28 is an officer, who has investigated with the power of assessment/re-assessment under Section 17 of the Customs Act. Accordingly, the whole show cause notice is vitiated for want of jurisdiction. The learned Counsel relies on the ruling of Hon ble Delhi High Court in the case of batch of writ petitions being Mangali Impex Ltd. Vs. Union of India others pronounced on 03.05.2016 reported at 2016-TIOL-877-HC-DEL-CUS. wherein, the issue before the Hon ble High Court, was as follows:- 1. The common question in this b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced vide Customs (Amendment and Validation) Act, 2011 with effect from 08.04.2011. The Hon ble High Court have observed as follows:- 66. The mere fact that Section 28(11) has been given retrospective effect does not solve the essential problem pinted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of other officers over the same subject matter. The doctrine of comity of jurisdiction requires that for the proper administration of justice there should be not be an overlapping of the exercise of powers and functions. The decision of the Pujab and Haryana High Court in Kenapo Textiles Pvt. Ltd. Vs. State of Haryana (Supra) and the decision of the Supreme Court in India Household and Healthcare Ltd. Vs. LG Household and Healthcare Ltd. (supra) are relevant in this context. Thereafter, the Hon ble High Court have concluded as follows:- 70.1 The net result of the above discussion is that the Department cannot seek to rely upon Section 28(11) of the Act as authorizing the officers of the Customs, DRI, the DGCEI etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer, subject to such officer being a proper officer to whom the function 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. 7. Further, considering these facts in the case of Pace International another W.P.(C) No.7383/2013, where the SCN was issued on 09.03.2011 by the Commissioner of Customs, (Preventive) pursuant to the putting on whole wages of consignments to be exported by the writ petitioner, the Hon ble High Court held that the adjudication order wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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