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TMI Blog2022 (2) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI ORS. [ 1998 (10) TMI 510 - SUPREME COURT ] that entertaining writ petition under Article 226 of the Constitution of India is a self imposed restriction if the petitioner is aggrieved and is not having efficacious and effective remedy, the same can be invoked but in the circumstance, when there is violation of fundamental rights or the action of the respondent is without jurisdiction and there is violation of principles of natural justice, the writ courts/constitutional courts have a bounden duty to entertain the writ petition. In the case in hand, it is an admitted fact that a show cause notice was issued, order in original was passed, appeal was preferred but the issue whether DRI Officers are proper officers under the Act of 1962 and have power to issue a show cause notice was not analyzed and ignored though the said controversy was no more res integra. T he petitioner has also raised the said issue before the learned Adjudicating Authority and placed reliance on the judgment of Canon India [ 2021 (3) TMI 384 - SUPREME COURT ], COMMISSIONER OF CUSTOMS VERSUS SAYED ALI [ 2011 (2) TMI 5 - SUPREME COURT ] M/S MANGALI IMPEX LTD., M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , through V.C. For the Respondent(s) : Mr. Kinshuk Jain, through V.C. ORDER 1. By way of present petitions, the show cause notice (SCN) issued by officers of Directorate of Revenue Intelligence (DRI) under Sections 28 and 124 of the Customs Act, 1962 (in short, Act of 1962), are challenged. In the instant matters D.B. Civil Writ Petition No.5928/2021 is taken as lead case and 5980/2021, 5981/2021 and 5984/2021 as connected matters, as cause and controversy in the matters are identical. 2. The contention of petitioners is that in the light of Apex Court judgment rendered by Larger Bench titled as M/s Canon India Private Ltd. Vs. Commissioner of Customs reported in AIR 2021 SC 1699 , it has been held that officers of DRI are not proper officers to initiate proceedings by way of issuance of show cause notice, raising demand/confiscation under Section 28 and 124 of the Act of 1962 and the subsequent proceedings thereto are without jurisdiction and ultra vires to the Act of 1962. 3. The case of the petitioner is that he is a Customs House Agent and the co-petitioners were importers engaged in the import of Glass Chatons at Customs ports at Jaipur. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the respondents to decide the same in accordance with law considering the judgment of Apex Court in Canon India Private Ltd (supra) . In writ petition No.2582/2021 titled as Vaneesh Sachdeva Vs. Union of India of Bombay High Court, Rajesh Ved Prakash Vs. ADG RWP No.19126- 28/2021 etc. 6. We have considered the submissions made by respective counsels for the petitioners as well as for the respondent-Department, scanned the record of writ petition and analyzed the judgments cited at Bar. 7. Before addressing the issue on merits, the preliminary objection raised by respondent counsel pertaining to maintainability of writ petition has to be considered. In this regard it is submitted that by way of celebrated judgment of Hon ble Apex Court titled as Whirlpool Corporation v. Registrar of Trade Marks Mumbai reported in (1998) 8 SCC 1 wherein the Apex Court in Para-15 held as under:- Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Hon ble Delhi High Court in the case of M/s Mangli Impex Vs. Union of India (2016- 335 ELT 605 Del), the ratio of the decision of the aforesaid case cannot be made applicable to the present case. 10. In the compelling circumstances, when the entire proceedings were initiated by way of show cause notice which was issued by DRI Officers who lacked jurisdiction to issue show cause notices as held by Apex Court, we deem it appropriate to entertain the present writ petition overruling the argument on alternative remedy as raised by respondent counsel. 11. That qua the submission made by petitioner counsel that the show cause notice and the entire proceedings subsequent thereto lacks jurisdiction, he drew our attention to Para-16 to 23 of Cannon India Private Ltd (supra) which is reproduced as under:- 16. At this stage, we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 28(4) was even a proper officer. The Additional Director General can be considered to be a proper officer only if it is shown that he was a Customs officer under the Customs Act. In addition, that he was entrusted with the funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Customs (i) Section 33 2 Additional Commissioner or Commissioner or of Customs (i) Sub-section (5) of section 46; and (ii) Section 149 3 Deputy Commissioner or Assistant Commissioner of Customs and Central Excise (i) .. (ii) .. (iii) .. (iv) .. (v) .. (vi) Section 28; 19. It appears that a Deputy Commissioner or Assistant Commissioner of Customs has been entrusted with the functions under Section 28, vide Sl. No.3 above. By reason of the fact that the functions are assigned to officers referred to in Column (3) and those officers above the rank of officers mentioned in Column (2), the Commissioner of Customs would be included as an officer entitled to perform the function under Section 28 of the Act conferred on a Deputy Commissioner or Assistant Commissioner but the notification appears to be ill-founded. The notification is purported to have been issued in exercise of powers under sub-Section (34) of Section 2 of the Customs Act. This section does not confer any powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration made is as hereunder:- 16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The learned counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is therefore, the governing test to determine whether an officer of customs is the proper officer . 20. 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 undersection 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. 23. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set- aside. 12. On perusal of judgment referred above and relying on provisions of Section 2(34) which defines proper officer , Section 6 which defines functio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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