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TMI Blog2022 (4) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... isposed of by a common order for the reason that they all contain identical question of law and the facts are largely similar, however, they may differ. 2. The lead matter is Special Civil Application No. 5562 of 2021 and the facts are drawn from the said matter for the purpose of adjudication. 3. M/s. Aztec Fluids & Machinery Pvt. Ltd. - petitioner herein is a Private Limited Company engaged in the business of trading and manufacturing of goods like Inkjet Printers, Laser Printers and parts as well as accessories of such printers. The petitioner no.2 is the Managing Director and also a member of the petitioner. He is a citizen of this Country and is entitled to the constitutional guarantees enshrined under the Constitution of India. 3.1. The respondent no.1 is the Union of India whereas the respondent nos. 2 to 7 are the officers of the Union of India. The respondent nos. 2 and 3 are the officers of Customs having jurisdiction over the imports made by the petitioner under Ahmedabad Customs Commissionerate including Ahmedabad Air Cargo Complex as well Khodiyar ICD. The respondent No.4 is the Commissioner of Customs in charge of Nhava Sheva Port where the petitioner has imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the import documents like Bills of Entry and Airway Bills filed by the Petitioner for the imported goods under the said classifications. Custom duties leviable on the imported goods in accordance with the rates applicable under the above referred Customs Tariff Headings have also been finally assessed by such Customs Officers and the duties so assessed have been fully paid by the petitioner for the said period. In absence of any kind of dispute on such facts, the petitioner has chosen not to produce any documents in respect of such assessment and collection of such duties. 3.6. It is the case of the petitioner that this petition involves consignments which had been allowed to be cleared for home consumption which have been sold by the petitioner to their customers as the petitioner is engaged in trading business. The sales has been effected by following due procedure and appropriate taxes leviable on such trading business also have been paid. 3.7. Around February, 2020, the office of DRI, Chennai Zonal Unit came across the imports made by the petitioner and thereupon, the respondent no.7 initiated investigation against the petitioner. The DRI Officers formed a belief that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest, penalty and confiscation of the goods, etc. It is alleged by the petitioner that the proceedings initiated by the respondent no.7 are wholly illegal and without jurisdiction because the DRI Officer is not the proper officer who can invoke Section 28 of the Customs Act and therefore, the notice issued by the respondent no.7 under Section 28 of the Customs Act is exfacie illegal and without any authority or jurisdiction. 3.10. It has heavily relied upon the decision in case of M/s. Canon India Pvt. Ltd. vs. Commissioner of Customs [2021(3) SCALE 748]. 3.11. It is urged that the entire proceedings of issuance of the show cause notice under Section 28 of the Customs Act is invalid and without authority of law since the DRI Officer is not the proper officer of the Customs and even the action taken is liable to be set aside when the proceedings itself is by DRI officer. It is also further the grievance of the petitioner that all concluded transactions are proposed to be reassessed for which the DRI Officer has initiated proceeding for recovery of duty allegedly not paid on the goods imported by the petitioner and such proceeding is initiated under Section 28(4) of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20(C) above may be kindly be granted; (E) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted." 4. This Court (Coram:- Mr. Vikram Nath, the Then Hon'ble The Chief Justice as his Lordship then was and Mr. Bhargav D. Karia, J.) admitted this matter and issued notice on 26.03.2021 with the following order: - "Heard Shri Paresh M. Dave, learned counsel for the petitioner. Admit. Issue Notice. By means of this petition under Article 226 of the Constitution, the petitioner has prayed for quashing of a show cause notice dated 24.02.2021 issued by the Additional Director General, Directorate of Revenue Intelligence, Chennai Zonal Unit, on the ground that the said officer cannot fall within the definition of a proper officer and as such could not have issued the notice under Sections 28 and 124 of the Customs Act, 1962. Reliance has been placed upon a recent judgment of the Supreme Court dated 09.03.2021 passed in Civil Appeal No.1827 of 2018, M/s.Canon India Private Limited vs. Commissioner of Customs, wherein it has been held that officers of Directorate of Revenue Intelligence would not fall within the domain of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have claimed NIL rate of duty exemption under Notification No. 24/2005 SI. No. 2E and the Managing Director - petitioner no.2 had informed that his competitors were clearing similar products with NIL rate of duty by claiming Notification No.24/2004 SI. No. 2E as Inkjet Printers and hence, they started filing the documents by claiming the notification exemption and they were asked to clear parts under 84439959 but the customs did not allow the classification and hence, they started classifying the parts under 84439990, which the company also accepted. 5.5. According to the statement of the petitioner no.2 on 15.12.2020, these printers were used for coding and marking of details such as batch no., expiry date, QR code, logo and he along with his Custom House Agent arrived at the HSN based on the classification being adopted by other companies importing these printers, whereas the version of the CHA is that they were filing the BoE classifying the CIJ printers under 84433250 after getting approval from the company. 5.6. According to the respondents, the investigation further revealed that description of these machines is different in the website of the importer/brochure submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that the DRI was set up under the Notification dated 04.12.1957 issued by the Ministry of Finance. Various Notifications were issued from time to time under Section 2(34) read with Section 4 of the Customs Act, 1962, according to the respondents, have not been placed before the Apex Court which resulted into the order dated 09.03.2021. They have tabulated the notifications right from 1990 to 2015. 5.11. It is further contended that the Apex Court in case of Commissioner of Customs vs. Sayed Ali [265 ELT 17] vide judgment dated 18.02.2011 held that unless and until the officers are appointed as proper officer under Section 2(34) read with Section 4 & 5 of the Customs Act 1962, assigning the function of adjudication under Section 28, it is not possible to conclude that the officers are empowered to discharge the function of issuing Show Cause Notice. Thereafter, the Finance Act, 2011 inserted sub-section (11) in Section 28 of the Act and also simultaneously issued Notification No.44/2011-Cus. (N.T.) dated 06.07.2011 under Section 2(34) of the Customs Act, 1962 assigning the function of proper officer under Section 17 & 28 of the Customs Act, 1962 to the DRI officers. This amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5.14. It is also contended by the respondents that in light of the judgment of the Apex Court in case of Sayed Ali (supra) the notifications as tabulated in the said affidavit-in-reply were issued by the Central Government under Sections 4 & 5 read with Section 2(34) of the Customs Act appointing the DRI officers as proper officers. It is emphasized that the Apex Court in M/s. Canon India Pvt. Ltd. (supra) observed that unless the authorities are notified as proper officers under Section 6 (which applies to officers of other department appointed as customs officers) they are not considered as "proper officers". The attention of the Apex Court in the case of Canon India had not been invited to the Notifications referred to in the table in para 12 of the said affidavit and also to the decisions of the Division Benches of various High Courts detailed in para 15 of the affidavit. 5.15. It is urged that the attention of the Apex Court was not invited to the amendment made to Section 28 of Finance Act, 2011 and when the Notifications and decisions are not considered while passing the order, then such decision is only persuasive. In such circumstances, it is urged that the Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue and pass the final order. High Court of Madras in WP No. 12502/2021 directed the parties to approach the appellate authority whereas the Telangana High Court at Hyderabad in IA No. 01/2021 in WP No. 8460/2021 gave interim stay. 5.21. According to the respondent, the review application is submitted under Section 27 of the Customs Act, therefore, the refund of duty of Rs. 50 Lakhs is a process to be followed. It is further urged that the Court may not consider the demand of the petitioner for refund of duty as there is an alternative remedy available to the petitioner. 5.22. The respondent has attempted to further highlight the issue which fall for consideration before the Apex Court at para 4 of the decision. The framing of the issue by the Apex Court in para 6, 9 and 12 also have been heavily relied upon. It is further submitted by the respondents that the Finance Act, 2011 (Act No.08 of 2011) dated 08.04.2011 has introduced the concept "Self Assessment of Customs" duty with effect from 08.04.2011 and the Central Board of Excise and Customs has issued Circular No.17/2011- Customs dated 08.04.2011 regarding implementation of Self Assessment in Customs which states that "the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en at the stage of Section 28, the proper officer does not exercise the powers of review. However, the proper officers exercise independent powers as proper officers subject to provisions and conditions laid in Section 28. Therefore, "in that view of the matter also it cannot be said that the show cause notices will have to be issued by the same officer who has done assessment or reassessment of the duties under Section 17." 6.1. It is emphasized that Section 28(11) refers to the proper officer and officers in plural is very significant as it clearly reflects the legislative intent to recover the duty short paid, not paid or erroneously refunded by assigning powers under Section 28 to multiple officers. "By not noticing this difference of singular word 'officer' in Section 17(4) and plural word 'officers' in Section 28(11) as apparent from the order dated 09.03.2021, this crucial aspect has been lost sight of and has caused the fatal error therein. Without striking 28(11) of the statute, the Hon'ble Court cannot take away the powers vested in officers other than the assessing officer and his successor in office." 6.2. In short, it has questioned the decision of the Apex Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided on 06.04.2021] has also rejected the review application rendered on 10.08.2021, therefore, the Court cannot take any other decision than that. Moreover, the final orders in cases like Commissioner vs. Agarwal Metals & Alloys also has been passed after the decision of Canon India. Therefore, in the instant case, the Court needs to hold that the reassessment cannot be undertaken by the DRI. 8. We have also heard extensively learned advocates appearing for both the sides. 9. Learned advocates appearing for the petitioners have relied upon following authorities in support of their arguments: - (i) Judgment of Hon'ble Supreme Court in case of M/s. Canon India Pvt. Ltd. vs. Commissioner of Customs [2021 (3) SCALE 748]; (ii) Copy of the status of Review Application filed in Commissioner of Customs vs. Sony India Pvt. Ltd. [Diary No. 9584/2021]; (iii) Judgment of Hon'ble Supreme Court in case of Commissioner of Customs, Kandla vs. M/s. Agarwal Metals and Alloys [Civil Appeal No. 3411/2020, dated 31.08.2021]; (iv) Judgment of this Court in case of M/s. CMR CHIHO Industries India Pvt. Ltd. vs. Union of India [SCA 10521/2020, dated 06.04.2021]; (v) Judgment of Madras High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Madras High Court in the case of M/s. R.K.K.R. Steel vs. The Central Board of Excise and Customs [W.P. Nos. 10276 to 10281/2011, dated 09.07.2021]; (xi) Order of Bombay High Court in case of Coastal Energy Pvt. Ltd. and another vs. Union of India [WP (L) No. 10206/2021, dated 230.09.2021]; (xii) Order of Punjab and Haryana High Court in case of Gautam Spinners vs. Deputy Director, Directorate of Revenue Intelligence [WP 16799/2021, dated 15.11.2021]; (xiii) Judgment of this Court in case of Swari Menthol and Allied Chem. Ltd. vs. Jt. DIR, DRI [(2014) 304 ELT 21]. 11. This Court at the outset needs to consider the decision of the Apex Court rendered in case of M/s. Canon India Pvt. Ltd. 11.1. In case of M/s. Canon India Pvt. Ltd. on 19.08.2014, a show cause notice was issued under Section 28(4) of the Customs Act, 1962 alleging that the Customs Authorities had been induced to clear the cameras by willful misstatement and suppression of facts about the cameras. While the decision to clear the goods for import because they were exempted from customs duties under notification was taken by the Deputy Commissioner, Appraisal Group, Delhi Air Cargo, a show cause notice has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts and confers the power of recovery on "the proper officer". The obvious intention is to confer the power to recover such duties not on any proper officer but only on "the proper officer". This Court in Consolidated Coffee Ltd. and Another vs. Coffee Board, Bangalore2 has held:- "14. ...Secondly, and more importantly, the user of the definite article 'the' before the word 'agreement' is, in our view, very significant. Parliament has not said 'an agreement' or 'any 2 (1980) 3 SCC 358 agreement' for or in relation to such export and in the context the expression 'the agreement' would refer to that agreement which is implicit in the sale occasioning the export." In Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd.3 has held:- "9. ...'The' is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalizing force of 'a' or 'an'. It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. 'The' is always mentioned to denote a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods. 13. Where the statute confers the same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment, the power to order reassessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute. 14. It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone. As in this case, when the statute directs that "the proper officer" can determine duty not levied/not paid, it does not mean any proper officer but that proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI who has been appointed as an officer of Customs, under the notification dated 7.3.2002, has been entrusted with the functions under Section 28 as a proper officer under the Customs Act. In support of the contention that he has been so entrusted with the functions of a proper officer under Section 28 of the Customs Act, Shri Sanjay Jain, learned Additional Solicitor General relied on a Notification No.40/2012 dated 2.5.2012 issued by the Central Board of Excise and Customs. The notification confers various functions referred to in Column (3) of the notification under the Customs Act on officers referred to in Column (2). The relevant part of the notification reads as follows:- "[To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii)] Government of India Ministry of Finance (Department of Revenue) Notification No.40/2012- Customs (N.T.) New Delhi, dated the 2nd May, 2012 S.O. (E). - In exercise of the powers conferred by subsection (34) of section 2 of the Customs Act, 1962 (52 of 1962), the Central Board of Excise and Customs, hereby assigns the officers and above the rank of officers mentioned in Column (2) of the Table below, the functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power. 22. In the above context, it would be useful to refer to the decision of this Court in the case of Commissioner of Customs vs. Sayed Ali and Ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ', the words 'five years' were substituted." 18. It is plain from the provision that the 'proper officer' being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the 'proper officer'. 19. Section 2(34) of the Act defines a 'proper officer', thus: '2. Definitions.- (34) 'proper officer', in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs;' It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be 'proper officers' in terms of Section 2(34) the Act. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndoned. The appeals are dismissed in terms of the signed order. Pending applications, if any, stand disposed of." 13. This Court in case of CMR Chiho Industries India Pvt. Ltd.(supra), was considering the question as to whether the search carried out by the officials of the DRI at the warehouse/factory premises of M/s. CMR Chiho Industries India Pvt. Ltd., Mehsana, where it was permissible in wake of the decision of the Apex Court in case of M/s. Canon India. It was alleged by the department that the petitioner had misdeclared the product as "discarded and non-serviceable semi-broken/broken motor" by mentioning CTH 7204 49 00 under the Other Ferrous Waste and scrap. This Court relying on the decision of the Apex Court rendered in case of M/s. Canon India Pvt. Ltd., in case of seizure of goods under Section 110, followed the ration of M/s. Canon India decision. "28. As can be noticed from the detailed submissions and the ratio laid down in Cannon India Pvt. Ltd. (supra) in the instant case also, the importer has filed bills of Entry at Thar Dry Port, ICD Customs, Sanand and declared the description of the product as "Discarded and Non- serviceable semi broken Motor Scrap" cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority which examined the same and cleared the goods of import. It was later on that the DRI with a "reasonable belief" that there was an undue benefit of the concessional rate of duty taken which resulted into the short payment of custom duty, placed the goods under detention and they were subjected to confiscation. It is quite obvious that the officer, who had permitted the import of the goods is not the one who had formed a reasonable belief of the petitioner having taken undue benefit of the concessional rate of duty. It is the officer of the DRI, who was not anywhere in the picture when the import took place, had acted and detained the goods and later on also confiscated the same. A very serious challenge in the instant case is also to the action of the DRI officer of detention and seizure dated 29.07.2020 and 03.08.2020 so also of the confiscation dated 11.08.2020 along with the challenge to the very action of show cause notice on the part of the respondent. 31. What is vital for the Court to regard is the factual details of the case on hand before applying the judgment of the Cannon India Pvt.Ltd. (supra) while exercising powers of detention, the DRI alleges that the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter, Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral. Provided further that notwithstanding the issuance of notice under this section, the proper officer may issue a supplementary notice under such the circumstances and in such manner as may be prescribed. 32.5. It also appears that under Section 125 of the Customs Act, there is an option to pay the fine in lieu of confiscation as the said provision provides that "whenever confiscation of any goods is authorized by this Act, the officer adjudging it may, in case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self assess the duty, if any, leviable on such goods. 35. Admittedly, the description in the Bill of Entry "Discarded and non-serviceable semi-broken motor scrap" even on inspection of the goods were found exactly as entered into the Bill of Entry i.e. discarded and non-serviceable broken motor scrap. The only reason after having allowed the import for not allowing the benefit of reduced rate of duty is because the Copper scrap and the Aluminum scrap in the material imported to the extent of 10% and 5% respectively and approximately could be taken out eventually from these broken motors. That essentially appears to be the reason for disallowing of the exemption. As is apparent from the material in the certificate of analysis produced at the time of clearance of the goods itself, the existence of the Copper scrap is also disclosed. It is not disputed by the respondent No.3 that such certificate of analysis had been produced. The same has also finds a specific mention in the panchnama dated 03.08.2020 and in the letter dated 03.08.2020 addressed to the petitioner by the Assistant Commissioner, ICD, Sanand. 35.1. It is in the beginning of this communication referred to "duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue Intelligence and Directorate General of Central Excise Intelligence, have been assigned the powers of various sections including the powers under subsection (1) and (2) of section 110 of the Act, which notification has been considered by the Apex Court with reference to assigning the powers of section 28 of the Act and has been held to be invalid. The learned counsel for the Union, could not dispute the said proposition as well as the applicability of the judgment to the facts of the present case, therefore, applying the principles enunciated in the case of Canon India Private Ltd (supra) the petition deserves to be allowed. 37. The decision of the Apex Court rendered in case of Commissioner of Customs, Calcutta vs. G.C.Jain, reported in 2011 (269) E.L.T. 307 shall also need to be referred to at this stage where dispute was whether Butyl Acrylate Monomer (BAM) can be said to be an adhesive for the purpose of allowing the duty free clearances against advance license issued under the DEEC scheme. "24.It is also observed that the demand is hit by the bar of limitation inasmuch as the appellant had cleared the goods in question after declaring the same in the bills of entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the stage of adjudication of show cause notice is yet to come, this Court has no intent to go into the issue of classification at all as it would be for the proper officer to workout the same on following the due procedure and on requisite scrutiny however, noticing that the order of detention and seizure by the DRI itself is unsustainable, we allow the petition by quashing and setting aside the seizure and the panchnama. 38.2 Resultantly, this Petition is allowed, quashing and setting aside the detention and seizure dated 29.07.2020 (Annexure-H ), dated 03.08.2020 (Annexure-L & M) & 11.08.2020 (Annexure-W )." 13.1. It is given to understand that this decision has not been challenged by the respondent and thus, respondent - Union of India has accepted the same. 14. This Court since has followed the ratio laid down by the Apex Court in case of M/s. Canon India Private Limited (supra), there is no reason as to why in all these matters where the show cause notices have been issued by the respondent after knowing fully well the decision of M/s. Canon India, should not follow the very ratio as has been done in case of CMR Chiho Industries India Pvt. Ltd.(supra). 15. As noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge even on the basis of approach made in the later decision of the Supreme Court may not be available before the Court to the petitioner in a matter before it." Apt would be to refer to the said decision:- "3. Two questions fall to be determined in this appeal (I) whether a suit for refund of tax paid to the Municipality is maintainable; and (2) if the suit is maintainable, whether the levy of tax by the Municipality was valid in law. 4. The first question is concluded by the judgment of this Court in Bharat Kala Bhandar's case, 1965-3 SCR 499 = . That case arose under the C.F. & Berar Municipalities Act, 1922. The right of a Municipality governed by that Act to levy under Section 66(1)(b) a tax on bales of cotton ginned at the prescribed rate was challenged by a taxpayer. This Court held that levy of tax on cotton ginned by the taxpayer in excess of the amount prescribed by Article 276 of the Constitution was invalid, and since the Municipality had no authority to levy the tax in excess of the rate permitted by the Constitution, the assessment proceedings levying tax in excess of the permissible limit were invalid, and a suit for refund of tax in excess of the amount perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also not much substance. The Municipality was constituted in 1905 under Section 41(1)(a)(b) of the Berar Municipal Act, 1888, a tax called "the Bale and Boja tax" was levied by the Municipality with effect from October 1, 1912, on cotton ginned and pressed in Ginning and. Pressing Factories at the rate of 8 pies per bale of 10 maunds, and 10 pies per bale of 14 maunds. On October 2, 1989, the Municipality resolved to revise the rates and by notification dated January 2, 1940, under Section 87(5) of the C.P. & Berar Municipalities Act, 1922, tax was permitted to be levied at the rate of four annas per bale with effect from October, 1, 1939. 8. The Berar Municipal Act was promulgated by the Viceroy & Governor-General, Berar being then not a. part of British India. By a notification of the. 'Governor-General dated June 22, 1924, under the Indian (Foreign Jurisdiction) Order in Council the Berar Municipal Act was repealed, and the Central Provinces Municipalities Act 2 of 1922 was applied to the Berar Area. After the Government of India Act, 1935, the Berar Laws (Provincial) Act, 1941 was enacted, and Berar was under Section 47 of the Government of India Act to be administere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of this Act cease to be levied to the extent in which such taxes exceed fifty rupees per annum. Section 3- The provisions of Section 2 shall not apply to any tax specified in the Schedule. The Schedule is as follows: THE SCHEDULE Taxes to which Section 2 does not apply. 1.The tax on professions, trades and callings, imposed through fees for annual licences, under Chapter XII of the Calcutta Municipal Act, 1928. 2. The tax on trades, professions and callings, imposed under Clause (f) of Sub-sections (1) of Section 123 of the Bengal Municipal Act, 1932. 3. The tax on trades and callings carried on within the municipal limits and deriving special advantages from, or imposing special burdens on, municipal services, imposed under Clause (ii) of Sub-section (1) of Section 128 of the United Provinces Municipalities Act, 1916. 4. The tax on persons exercising any profession or art, or carrying on any trade or calling, within the limits of the Municipality, imposed under Clause (b) of Section (1) of Section 66 of the Central Provinces Municipalities Act, 1922. 5, The tax on companies, imposed under Section 110 of the Madras City Municipal Act, 1919. 9. The Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax prescribed by the notification of 1912 alone could be enforced, subject to the limit prescribed by Article 276(2) of the Constitution. The Municipality was therefore incompetent to levy a tax at a rate exceeding Rs, 250/- for the whole year. 12. The appeal is allowed and the decree passed by the Trial Court is restored. The Municipality will pay the costs in this Court and in the High Court." 19. Thus, not only the binding decision of the Apex Court in case of Canon India (supra) will govern the fate of each matter where the issuance of show cause notice is by the DRI and in contravention of the ratio laid down, it is also for this Court to ignore such ratio by holding that this issue also could be approached in different ways. Nor would it make permissible to defend the action of the State on the ground of cause expounded in the show cause notice when the very authority as per the decision lacked authority to issue the same. This Court much awaited for the outcome of review which is pending. However, as agreed to by both the sides, there is no certainty of its finalization and again, all the appeals are finalized subject to the outcome of reply. 20. The amendment in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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