9911796707
TMI Blog2022 (6) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... case of STATE OF ORISSA ANR VERSUS MAMATA MOHANTY [ 2011 (2) TMI 1371 - SUPREME COURT] Hon ble Apex Court clearly rejected that the plea the ground not taken earlier can be taken on the basis of the decision in case of some other person without proper explanation of delay in taking the said ground. The observations have been made in respect of the Finance Bill, 2022 which was under the consideration of parliament and have been made in respect of the proposal introduced in the parliament much after the conclusion of hearing. Thus department was not allowed any opportunity of hearing on the pleas which have never been advanced by any of the parties. The while arriving at the said finding the bench has ignored the provisions of Section 97 completely, whereby by the Act, the actions taken have been validated by the will of Parliament. Hence the decisions rendered contrary to the express intent of Section 97 is per incuriam. In absence of proper explanation on the delay in latches in advancing this plea, there are no merits found in these applications - The miscellaneous applications seeking additional ground to be taken are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ported 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 powers on any authority to entrust any functions to officers. The sub-Section is part of the definitions clause of the Act, it merely defines a proper officer, it reads as follows: "2. Definitions. - In this Act, unless the context otherwise requires, - …… (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 Principal Commissioner of Customs or Commissioner of Customs." 20. Section 6 is the only Section which provides for entrustment of functions of Customs officer on other officers of the Central or the State Government or local authority, it reads as follows: "6. Entrustment of functions of Board and customs officers on certain other officers. - The Central Government may, by notification in the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be raised at this stage, is clearly hit by the delay and latches in taking the plea. * The decision of the Apex Court in the case of Canon has not be accepted by the revenue and review petition has been filed before the Hon'ble Apex Court Apex Court. This review petition is under active consideration as is evident from the order dated 15th February 2022 of the Hon'ble Apex Court in the matter. * By the Finance Act, 2021, amendments have been made to the Customs Act, 1962 and the actions taken by the officers of DRI under the Customs Act have been validated. In view of the amendments made this issue of the jurisdiction which is raised now become infructuous. 3.1 I have considered the applications along with the submissions made during the course of arguments. 3.2 Admittedly in the present case the plea of the jurisdiction was not raised by the applicants before the original authority. He has made his submissions before the original authority, without raising this issue at any time, since the issuance of the show cause notice to him in the year 2009. Now having failed before the original authority applicant has by way of this application sought to raise this ground a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of hat section. Since, however, we have not permitted the learned counsel to argue the matter, it is not necessary to pursue this matter any further. (ii) Relying this decision Hon'ble Apex Court has in case of Kedar Shashikant Deshpande Vs Bhor Municipal Council & Or [(2011) 2 SCC 654] has held as follows: "4. The next contention raised by the learned counsel for the appellants that the Additional Collector had no jurisdiction to entertain and decide the disqualification petition filed by the respondents because he is not the Collector within the meaning of Section 2(b) of the Act has no substance. As rightly pointed out by the learned counsel for the respondents, this argument was never raised before the Additional Collector who decided the disqualification petition nor this point was raised before the High Court. In Remington Rand of India Ltd. vs. Thiru R. Jambulingam (1975) 3 SCC 254, this Court, did not allow the plea of lack of jurisdiction to be taken for the first time in an appeal, after the appellant having submitted to the jurisdiction of the Authority in earlier proceedings. The question whether Additional Collector had jurisdiction to entertain and decide the disq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel of behalf of the appellant." 3.3 From the above decisions it is quite evident that if the Show Cause Notice was issued by the officer, who did not have the properly constituted jurisdiction, then the noticee could have well ignore it as non est in law, however having accepted the show cause notice and by participating in the proceedings without raising the plea of jurisdiction the person would have lost the right to challenge in subsequent appellate proceedings. Further without proper explanation of the delay and laches in raising the plea I am of the view that the plea could not have been allowed. 3.4 By the Finance Act, 2022 all the actions taken by the DRI officers have been validated. The relevant provisions of the Finance Act, 2022 are reproduced below: 87. For section 3 of the Customs Act, the following section shall be substituted, namely:- "3. There shall be the following classes of officers of customs, namely:- (a) Principal Chief Commissioner of Customs or Principal Chief Commissioner of Customs (Preventive) or Principal Director General of Revenue Intelligence; (b) Chief Commissioner of Customs or Chief Commissioner of Customs (Preventive) or Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) computer assigned random assignment; (f) any other criterion as the Board may, by notification, specify. (5) The Board may, by notification, wherever necessary or appropriate, require two or more officers of customs (whether or not of the same class) to have concurrent powers and functions to be performed under this Act.". 97. Notwithstanding anything contained in any judgment, decree or order of any court, tribunal, or other authority, or in the provisions of the Customs Act, 1962 (hereinafter referred to as the Customs Act),-- (i) anything done or any duty performed or any action taken or purported to have been taken or done under Chapters V, VAA, VI, IX, X, XI, XII, XIIA, XIII, XIV, XVI and XVII of the Customs Act, as it stood prior to its amendment by this Act, shall be deemed to have been validly done or performed or taken; (ii) any notification issued under the Customs Act for appointing or assigning functions to any officer shall be deemed to have been validly issued for all purposes, including for the purposes of section 6; (iii) for the purposes of this section, sections 2, 3 and 5 of the Customs Act, as amended by this Act, shall have and shall always be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper officer‟ under the Customs Act and on "the Central Excise officer‟ in the other two Acts and this dissimilarity implies that the Central Excise officer need not be "proper officer' but the similarity lies in the use of the definite article 'the' instead of 'a' or 'any' or 'any of the', etc. The meaning of the definite article "the' when used in any law was explained by the Supreme Court in Consolidated Coffee Ltd. and others vs Coffee Board, Bangalore22 and it was held as follows: ― 14. Secondly, and more importantly, the use of the definite article "the‟ before the word "agreement‟ is, in our view, very significant. Parliament has not said 'an agreement' or 'any 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." 6. The scope of the article "the' was again examined by the Supreme Court in Shri Ishar Alloy Steels Ltd. vs Jayaswals Neco Ltd.23 and it was held as follows: ― 9. 'The' is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalizing forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity of hearing on the pleas which have never been advanced by any of the parties. I am of the considered view that the while arriving at the said finding the bench has ignored the provisions of Section 97 completely, whereby by the Act, the actions taken have been validated by the will of Parliament. Hence the decisions rendered contrary to the express intent of Section 97 is per incuriam. 3.7 It is further noted that Hon'ble Supreme Court has noted the plea of Section 28 (11) and is hearing the matter on the same. In case of Godrej and Boyce Manufacturing Co Ltd. (SLP No 1813/2022) by the order dated 11.02.2022, Hon'ble Apex court recorded as follows: "ORDER In this special leave petition, the High Court, in the impugned order, has purported to follow the judgment of this Court reported in Canon India Private Limited V Commissioner of Customs 2021 SCC Online SC 200. This is a judgment rendered by a Bench of three learned Judges. By the said judgment, this court has held that an Additional Director General, Directorate of Revenue Intelligence, cannot be treated as proper officer within the meaning of Section 2(34) of the Customs Act read with Section 28 of the said Act. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
