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TMI Blog2018 (3) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... horities of concerned Revenue Department. It is left to the concerned Revenue Department itself to bifurcate, assign and divide its jurisdiction amongst its several designated officials. Nobody can deny that these authorities work for the ultimate object of implementation of the Customs Act, 1962. The tax payers have no right to choose their adjudicating authority. The Revenue’s contention that once the territorial jurisdiction is conferred, the Collector of Customs (Preventive) becomes a ‘proper officer’ in terms of Section 28 is not acceptable, the Parliament had no option, but to declare even these Anti-evasion Wing officials to be ‘proper officers’ to legally vest them with the jurisdiction to undertake the proceedings for assessment. This was obviously done to save the proceedings in the Courts of law particularly Constitutional Courts challenged on the technical and narrow ground of lack of jurisdiction. The petitioner does not appear to have filed any reply or objections to the said show-cause notice before the Principal Commissioner/Commissioner of Customs Bengaluru - the challenge to such SCN must fail as premature - petition dismissed. - Writ Petition Nos. 9504 & 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of Section 28(11) of the Act itself is ultra vires and is liable to be struck down by this Court and consequently the impugned show-cause notice issued by the Additional Director General also deserves to be quashed as there is complete lack of jurisdiction with him to issue any such show-cause notice, albeit the said authority- Additional Director General while issuing 37 pages impugned show-cause notice has called upon the petitioner- company to finally show-cause before the Principal Commissioner/Commissioner of Customs, Bangalore, in pursuance of the said notice issued by him. 5. learned counsel Mr.Raghuraman has also drawn the attention of the Court to the following judgments to support his contentions: 1. Sri Balaji Rice Company Vs. Commercial Tax Officer No.1, Nellore others - (1984) 55 STC 292 2. Sivaramakrishnan Vs. State of Kerala others - Docid # IndLawLib/556192 6. Upon issuance of notice, the respondents have put in appearance before this Court and Mr.Jeevan Neeralgi appeared on behalf of the respondents. 7. Mr.Jeevan Neeralgi has submitted before the Court that to undo the effect of the judgment of the Hon ble Supreme Court in Sayed Ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional General Director Commissioner of Customs 4 Additional Director Additional Commissioner of Customs 5 Joint Director Joint Commissioner of Customs 6 Deputy Director Deputy Commissioner of Customs 7 Assistant Director Assistant Commissioner of Customs 8 Senior Intelligence Officer Superintendent/Appraiser 9 Intelligence Officer Inspector/Preventive Officer/Examiner 2. This Notification shall come into force with effect from 15th October, 2014. [Notification No.80/2014-Cus. (N.T.), dated 16-9- 2014] Appointment of D.R.I. officials as Customs Officers.- In exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of notification of the Government of India in the Ministry of Finance (Department of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (11) of the Act is concerned, this Court does not find any illegality or lack of legislative competence or ultra vires in the said provision. As per the well settled legislation practice of undoing the effect of the judgments of the Constitutional Courts by removing the defects pointed out by the Courts of law, the legislature came forward to frame laws in consonance with the legislative objects sought to be achieved. The provisions of Section 28(11) accordingly were inserted on 16.9.2011 soon after a decision of the Hon ble Supreme Court in Sayed Ali s Case rendered on 18.2.2011, as apparently otherwise, it would result in quashing of the proceedings on the basis of lack of jurisdiction and would render several show-cause notices and proceedings liable to be quashed in terms of the said judgment. 13. To save the enquiry, investigation and initiation of assessment proceedings to prevent evasion of customs duty, such legislative amendment became necessary and that is why the Parliament in its own wisdom brought in this amendment by inserting sub- section (11) in Section 28 of the Act. The said provisions cannot be said to be unguided or arbitrary so as to fall foul with Article 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme had rendered the judgment in Sayed Ali s Case can be culled out from paragraph-14 which is quoted below for ready reference: 14. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a customs officer who has been assigned the specific functions of assessment and re-assessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose in as much as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. Moreover, if the Revenue s contentions that once territorial jurisdiction is conferred, the Collector of Customs (Preventive) becomes a proper officer in terms of Section 28 of the Act is accepted, it would lead to a situation of utter chaos and confusion, in as much as all officers of customs, in a particular area be it under the Collectorate of Customs (Imports) or the Preventive Collectorate, would be proper officers . In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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