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TMI Blog2022 (6) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... ms is to be drawn by the Board. Section 3, of the Customs Act, 1962, recognizes the classes of Officers of Customs . It also includes such other classes of Officers of Customs who may be appointed for the purpose of the Act by the Board - Under Sub-Section 2 to Section 4, the Board can also authorize the officers mentioned therein to appoint Officers of Customs below the rank of the Assistant Commissioner of Customs. Officers from Group-B who are already from the Customs Department can be appointed as Officers of Customs . Similarly, the Officers of Directorate of Revenue Intelligence (DRI) are appointed as Officers of Customs under notification issued under Section 4(i) of the Customs Act, 1962 - Apart from the above, the Central Government may by notification can also entrust the function of the Board or any Officers of Customs under the Customs Act, 1962, on any other officer from any other department, viz., the Central Government, the State Government or the Local Authority either conditionally or unconditionally. Thus, under Section 6 of the Customs Act, 1962, the powers and functions(duties) of the Board and/or Officers of Customs specified in Section 5 read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent : Mr.K.Mohanamurali Senior Panel Counsel COMMON ORDER By this common order, all the below mentioned 17 cases are being disposed. Since the 17 cases are being disposed by this common order, it is divided into 10 Parts as follows:- Part No. CONTENT Paragraphs I Introduction. 2 - 7 II Impact of Finance Act, 2022. 8 - 15 III Facts of the Cases and Brief Submissions 16 -147 IV Discussion. 148 - 170 V Note on Directorate of Revenue Intelligence (DRI). 171 - 178 VI Classes of Customs Officers. 179 - 189 VII Note on the Cadre in the Customs Department. 190 - 201 VIII Changes to Section 17 w.e.f. 11.04.2011- The Assessment of Bill(s) of Entry and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9306/ 2021 M/s.Sun Tv Network Limited F.No.DRI/MZU/E/13/ 2012/5518 19.07.2013 9 8242/2021 Shri.Mahaveer Kumar F.No.DRI/AZU/CI/ENQ-19(INT01)2017 23.11.2017 10 11268/2021 Mr.D.Vivek F.No.DRI/CZU/VIII/48/ENQ-1/INT-23/2019 * 06.12.2019 11 11271 of 2021 Mr.T.Arun 06.12.2019 12 11274 of 2021 Mr.Parameshchary Kananthoju 06.12.2019 13 11156 of 2021 Mr.Devadoss Gittan 06.12.2019 14 9405 of 2021 Mr.K.SwaminathanManaging Director M/s.Sun Direct TV Pvt.Ltd., F.No.DRI/BZU/S-IV/ENQ-17 (INT-NTL)/2019/318 23.06.2020 15 9407 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021(376) E.L.T. 3(S.C.) the above case has held that the officer from the Directorate of Revenue Intelligence (DRI), are not the Proper Officer within the meaning of Section 2(34) of the Customs Act, 1962 for issuing Show Cause Notice under Section 28 of the Customs Act, 1962. The Hon'ble Supreme Court held that If it was intended that officers of the Directorate 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 4-121957 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; Validation of certain actions taken under Customs Act. (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 deemed to have effect for all purposes as if the provisions of the Customs Act, as amended by this Act, had been in force at all material times. Explanation. For the purposes of this section, it is hereby clarified that any proceeding arising out of any action taken under this section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued with a closed mind besides being passed in clear violation of the Principles of Natural Justice and in passed in gross judicial indiscipline, as the petitioner had relied upon Judgements of this Hon ble Court in W.P.No.1641 of 2008 dated 10.01.2011 and W.P.No.3720/2009 dated 01.12.2014; besides the orders of Commissioner of Customs (Appeals), pertaining to the Valuation of Import of Apples in the preceding years; and also for the reason that the Imports in question, impugned in the Order under Challenge in the present writ petition were on the basis of an Apostilled Contract , issued in terms of the Hague Convention, 1961 , to which India as a Sovereign Country is a signatory and the said contract is binding on all Indian Authorities functioning under the aegis of the Indian Constitution 17. By the impugned Order-in-Original No.39839 of 2015 dated 29.06.2015, the respondent Commissioner of Customs has confirmed the demand proposed in the Show Cause Notice dated 26.03.2010 bearing reference F.No.VIII/371/2009-DRI-CZU under Section 28 of the Customs Act, 1962 and imposed interest under Section 28AB of the Customs Act,1962, redemption fine under Section 125 and penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary 2009. 25. During the pendency of the above writ petition, the petitioner was issued with the above mentioned Show Cause Notice dated 26.03.2010 bearing Reference F.No.VIII/371/2009-DRI-CZU by the Additional Director General of Directorate of Revenue Intelligence. 26. In the light of the submissions of the petitioner, the said writ petition in W.P.No.3720 of 2009 was disposed by this Court by its order dated 01.12.2014. 27. The petitioner also appears to have also filed another writ petition in W.P.No.1641 of 2008, wherein the petitioner had challenged an earlier impugned Order-in Original and that the writ petition came to be allowed on 10.01.2011 and therefore, a direction was issued to the officers to adjudicate the Show Cause Notice dated 26.03.2010 within a period of four weeks from the date of receipt of a copy of this order. 28. On merits the challenge to the impugned Order is also on the strength of the earlier order passed in W.P.No.1641 of 2008 on 10.01.2011. The petitioner has made several other submissions on merits by stating that the respondent has not followed the orders passed for similar imports made by the petitioner earlier. Learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 124 of the Act as proposed in the Show Cause Notice dated 10.02.2012 bearing reference No.VIII 26/363/07 issued by the Directorate of Revenue Intelligence(DRI). 32. The dispute in this case also pertains to alleged wrongful availing of the benefit of Customs Notification No.41/2005-Cus dated 09.05.2005 read with Appendix of 37-B of Hand Book Procedure, Foreign Trade Policy. 33. The Show Cause Notice seems to indicate that the statements were recorded from the partner of the petitioner namely, the second petitioner herein on 10.10.2007 and that the said petitioner also under took to pay the difference customs duty. 34. However, thereafter, filed W.P.No.33715 of 2007 before this Court for a mandamus to restrain the Officers of the Directorate of Revenue Intelligence from either summoning and/or demanding duties under the Bills of Entry filed by the petitioner from 2006 to 2007, in respect of apples imported and duty paid under (Vishesh Krishi Gram Udyog Yojana Scheme (VKGUY Scheme), availing the benefit of Notification No.41/2005-Cus dated 09.05.2005. The writ petition came to be disposed on 27.11.2011. 35. The impugned Order in Original is primar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny recovery of the Adjudicated dues pursuant to the said Order In Original, as it is partisan, one sided and issued with a closed mind besides being passed in clear violation of the Principles of Natural Justice. 41. By the impugned Order-in-Original, the first respondent Commissioner of Customs has confirmed the demand proposed in the Show Cause Notice dated 25.04.2013 bearing reference No.VIII 48/41/2012-DRI issued by the Additional Director General, Directorate of Revenue Intelligence(DRI). 42. It was alleged that the petitioner had imported fire crackers in the name of M/s.Malar Agencies which were restricted items of import and disguised the import with birthday party poppers to conceal the imported fire crackers. 43. It is submitted that the impugned Order-in-Original dated 05.02.2016 was without jurisdiction. It was further submitted that before passing impugned Order-in-Original dated 05.02.2016, an opportunity to cross-examine Shri.Ashok Kumar and Shri.Dayanadhi and Shri.S.Suresh (the Joint Director of Custom House Laboratory, Chennai) and Shri. Sargunarajan (Joint Chief Controller of Explosives) ought to have been given. 44. Facts, on records indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order passed pursuant to show cause notice dated 30.06.2015 issued by the third respondent/Additional Director General, Directorate of Revenue Intelligence was without jurisdiction. 49. The Show Cause Notice dated 30.06.2015 bearing reference F.NO.DRI/CZU/VIII/48/ENQ-01/INT-25/2014 was issued by the third respondent/Additional Director General, Directorate of Revenue Intelligence to the petitioner Shri.Farooq Ubaithulla as a co-noticee. 50. The petitioner was called upon to show cause as to why, the penalty should not be imposed on him under Section 112 and Section 114 AA of the Customs Act, 1962 along with the co-noticee named in the paragraph 117 of the Show Cause Notice. 51. It was alleged that the petitioner had destroyed evidence to facilitate evasion of Customs Duty by the main Noticee in the Show Cause Notice, bearing reference F.NO.DRI/CZU/VIII/48/ENQ-01/INT25/2014 issued by the Additional Director General, Directorate of Revenue Intelligence (DRI) dated 30.06.2015. The allegation against the petitioner in Show Cause Notice reads as under:- 109.1 During the course of the search proceedings at showroom premises of M/s.Designer s Furniture, No.28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onoured by him. The purpose of dodgining the summons and entering into unwanted and undesired correspondence seemed to drag the proceedings and to brow-beat the officers investigating the case. 109.3. In the above said circumstances, DRI filed a petition under Section 174 IPC with the Hon ble Additional Chief Metropolitan Magistrate, E.O.I, Egmore and its proceedings are pending before the Hon ble Court at the time of issue of this Notice. 109.4. Shri Farook Ubaidullah is an ex-cofeposa detenue. He was detained on two occasions by the State Government of Tamil Nadu vide Detention Order in S.R.1/280-5/94 datd 04/04/1994 for the offence in O.S.No.46/1994 (Air) concerned with seizure of foreign currency valued at Rs/36,74,984/- and in S.R.I/844-8/99 dated 26.10.1999 for the offence in O.S.No.44/1999 (Air) concerned with seizure of electronic goods valued at Rs.9.03 lakhs . 52. The petitioner was called upon to show cause notice as to why penalty under Sections 112 and 114A of the Customs Act, 1962. It is further submitted that the said petitioner was not connected with import of goods and therefore the impugned Order passed pursuant to the Show Cause Notice dated 30.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Canon India Private Limited Vs. Commissioner of Customs 2021 (376) E.L.T. 3(S.C.). 59. The learned ASG assisted by Mr.V.Sundareswaran, learned Senior Panel Counsel submitted that the Show Cause Notice was issued on 30.06.2015 and the case was adjudicated on 30.12.2015 five years before the aforesaid decision of the Hon ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021 (376) E.L.T. 3(S.C.). 60. It is submitted that the petitioner was silent after the Show Cause Notice was issued and failed to reply to the Show Cause Notice was issued. Further, long after the adjudication of the said Show Cause Notice vide Order-in-Original No.44421/2016 dated 30.12.2015 by the first respondent, Commissioner of Customs, the petitioner has filed this writ petition. The petitioner as per his own admission admitted to have came to knowledge about the case against him in the subject case through a detention notice dated 26.04.2019 served on him by the second respondent for payment of penalty of Rs.55,00,000/- in terms of Order-inOriginal No.44421/2016 dated 30.12.2015 issued by the first respondent during the petitioner s incarceration in Puzhal Prison and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner cannot be sustained. PART- B (TABLE II CASES) CHALLENGE TO IMPUGNED SHOW CAUSE NOTICES: W.P.No.9484 of 202 W.P.No.9434 of 2021 1- [ M/S.Sneha Glasses Private Ltd. And M/S.Bagrecha Enterprises Ltd.,- Sl.Nos.6 and 7 in Table-II] 66. The petitioners have challenged the impugned Show Cause Notices issued by the Additional Director of Directorate of Revenue Intelligence. The prayer in these Writ Petitions read as under:- W.P.No.9484 of 2021 W.P.No.9434 of 2021 Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for the entire records connected with the Show Cause Notice F.No.VIII/48/28/2008-DRI, dated 26.10.2009, passed by the third respondent herein and quash the same . Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for the entire records connected with the Show Cause Notice F.No.VIII/48/33/2008-DRI, dated 26.10.2009, passed by the third respondent herein and quash the same . 67. The challenge to the impugned show cause notices is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. Mentha Allied Products Ltd Vs. Commr. Of CGST, Chandigarh 2021 (376) E.L.T. 41 (P H), iii. Mahalakshmi Traders Vs. Assistant Commissioner of Customs (GR.7B-DEPB), Chennai 2021 (378) E.L.T. 51 (Mad), iv. Swathi Menthol Allied Chemicals Limited Vs. Commr., GST C.Ex. Commissionerate, Chandigarh 2021 (378) E.L.T. 110 (P H) and v. Sushitex Exports (India) Ltd, Ors Vs. Union of India Anr, W.P.(L).No.9641 of 2020; vi. Babu Verghese and others Vs. Bar Council of Kerala and Ors, AIR 1999 SC 1281; vii. Commissioner of Customs Vs. Sayed Ali, 2011(265) E.L.T.17(S.C.); viii. Mangali Impex Ltd., Vs. Union of India, 2016 (335) E.L.T.605(Del.) . 73. The learned counsel for the petitioners further submits that the Hon'ble Division Bench of the Bombay High Court in Commissioner of Customs Vs. Reliance Industries Limited, 2021 SCC Online 5914 has discussed at length. 74. Opposing the prayer in this writ petition, the learned ASG duly assisted by the learned Senior Panel Counsel for the third respondent submits that the petitioner had attempted to take a adjournment in the show cause notice stating that the petitioner was settling the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not approached the Settlement Commission and therefore that the submissions that case was settled before the Settlement Commission cannot be countenanced. W.P.No.9306 of 2021: [ M/s.SUN NETWORK LIMITED-Sl.No.8 of Table-II] 81. The petitioner has challenged the impugned Show Cause notice dated 19.07.2013 issued by the second respondent Additional Director of DRI, Mumbai seeking to demand customs duty and to appropriate an amount of Rs.60,17,61,981/- paid by the petitioner. Thereafter, no summons were issued by the Office of the second respondent on 05.03.2013. The prayer in the said writ petition reads as under:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to quash the show cause notice dated 19.07.2013 in File No:DRI/MZU/E/13/2012/5518 issued by the second respondent now pending adjudicating before the first respondent and consequently direct the second respondent to refund the said sum of Rs.60,17,62,000/- (Rupees Sixty Crores Seventeen Lakhs Sixty Two Thousand Only) paid by the petitioner by way of demand draft dated 05.03.2013 bearing No: 544861 drawn at City Union Bank Ltd., Mandaveli Branch, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Private Limited Vs Commissioner of Customs, 2021(376) E.L.T. 3(S.C.) 87. The learned Senior Counsel for the petitioner has also relied on the decision of the Hon'ble Supreme Court in Raza Textiles Limited Vs Income Tax Officer, (1973) 1 SCC 633. A specific reference was made to Paragraph 3 from the said decision to support the case of the petitioner to state that the second respondent cannot assume jurisdiction and deny refund of the amount under protest and without prejudice. 88. It is submitted that the entire proceedings are vitiated and are therefore liable to be interfered notwithstanding that the petitioner has replied to the Show Cause Notice in the light of the decision of the Hon'ble Supreme Court in Canon India Private Limited case (referred to supra). 89. The learned Senior Counsel for the petitioner has also placed reliance on the decision of the learned Single Judge of this Court in Alston Transport India Limited Vs The Additional Director General, Directorate of Revenue Intelligence, Zonal Unit, G.N.Chetty Road, T.Nagar, Chennai and 16 others, passed in W.P.No.19919 of 2021 dated 25.10.2021 and the Madurai Bench of this Court in Quantum Coa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the value and correct description. It appears that the petitioner had given submissions which were later retracted and the petitioner was not connected with M/s Johnrose. It further appears M/s Johnrose also earlier had filed Writ Petition and secured an order for provisional release of the goods. 94. It appears that the proprietor of M/s.Johnrose had also retracted his earlier statements given before the DRI by contending that the statement given by him was not voluntary, and that the statement was recorded under duress, coercion and force. 95. The learned counsel for the petitioner submitted that with regard regards to the adjudication of Show Cause Notice, they had vide by their various representations, had sought for to provide with the relied upon documents to the impugned Show Cause Notice, while also had sought for cross-examination of certain persons as referred to in the said letter/representation addressed by the petitioner to the respondents herein. 96. The counsel for the petitioner submitted that in the impugned Show Cause Notice issued by the 1st respondent Additional Director Directorate of Revenue Intelligence is yet to be adjudicated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds) Rules,2007 and redetermined as Rs.1,22,03,964/-(Rupees One Crore Twenty Two Lakhs Three Thousand Nine Hundred and Sixty Four Only) as detailed in Annexure-A to this Show Cause Notice, under sub-section (1) of Section 14 of the Customs Act, 1962 read with Rule 3 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, as applicable: ii. The imported Glass Chatons, Cup Chain and Glue Sheets, as detailed in Annexure-A to this Notice, valued at Rs.1,22,03,964/-(Rupees One Crore Twenty Two Lakhs Three Thousand Nine Hundred and Sixty Four Only) (re-determined value), should not be held liable for confiscated under the provisions of Section 111(d) and 111(m) of the Customs Act,1962; iii. Customs Duty amounting to Rs.19,12,746/(Rupees Nineteen Lakhs Twelve Thousand Seven Hundred and Fourty Six Only) leviable on various imported goods of Chinese origin totally valued at Rs.1,22,03,964/-(Rupees One Crore Twenty Two Lakhs Three Thousand Nine Hundred and Sixty Four Only) (re-determined value) as detailed in Annexure-A to this Show Cause Notice, should not be demanded and recovered from them under Section 28(4) of the Customs Act, 1962; iv. Interest sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 28(4) of the Customs Act, 1962, adjudication should be completed within a period of twelve months from the date of receipt of a copy of the Show Cause Notice. 107. In this connection, the learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Punjab and Haryana High Court in Harkaran Dass Vedpal Vs Union of India, 2019 (368) E.L.T. 546 (P H) and in Super Oil Company Vs Union of India, 2020 (372) E.L.T. 536 (P H). 108. The learned counsel for the petitioner submits that after the writ petition was listed for admission on 12.05.2021 and notice was ordered, the second respondent has passed Order-in-Original dated 31.12.2021 and thereby attempted to make these writ petitions infructuous. 109. On a query as to whether the petitioners have filed any appeal or challenged the aforesaid order of the second respondent, it is submitted that the petitioners have not initiated any proceedings against the order dated 31.12.2021. 110. It is the further case of the petitioner that the impugned Show Cause Notice issue is contrary to the decision of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. 116. It is submitted that the interpretation to the expression Proper Officer as defined under Section 2(34) of the Customs Act, 1962 which came up for consideration before the Hon'ble Supreme Court in Canon India Private Limited Vs Commissioner of Customs, 2021 (376) ELT 3(S.C).is not applicable to the facts of the case. 117. The learned counsel for the respondent submits that under Section 124 of the Customs Act, 1962, a notice can be issued with an approval from the officers of the Assistant Commissioner of Customs. 118. It is submitted that the expression Proper Officer has not been used in Section 124 and in Section 111 of the Customs Act and therefore the decision of the Hon'ble Supreme Court in Canon India Private India Ltd. cannot be applied to the facts of the case. He further submits that in any event Order-in-Original has been passed. In view of the same, the writ petition is liable to be dismissed as infructuous. 119. By way of rejoinder, the learned counsel for the petitioner made a specific reference to the decision of the Principal Bench of the Customs, Excise Service Tax Appellate Tribunal in Customs Appeal No.51570 of 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from Singapore and filed a declaration contemplated under Section 77 of Customs Act, 1962. The petitioner and the copassengers were arrested and the goods namely Gold and Electronic items were seized by the officers even before the petitioner could file declaration between the Customs Department. W.P.Nos.9405 9407 of 2021:[ K.Swaminathan L.Subramanian Sl.No.14 15 in Table] 126. The prayer in W.P.Nos.9405 and 9407 of 2021, reads as follows:- W.P.No.9405 of 2021 W.P.No.9407 of 2021 Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to quash the show cause notice dated 23.06.2020 in File No: DRI/BZU/S-IV/ENQ-17(INT-NIL) 2019/318 issued by the second respondent now pending adjudicating before the first respondent . Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to quash the show cause notice dated 23.06.2020 in File No: DRI/BZU/SIV/ENQ-17(INT-NIL) 2019/317 issued by the second respondent now pending adjudicating before the first respondent . 127. W.P.No.9405 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le duties and taxes on the said Viewing Cards imported by them as detailed in Annexure A2, es applicable under CTH 85299090; and as to why the IGST exemption claimed under notification no. 01/2017 Integrated Tax (Rate) dated 28.06.2017 (at serial No. 382 of Schedule-III), by virtue of mis-classification should not be denied to them: (iii) the said Viewing Cards imported, having an assessable value of Rs. 130,88,15,025/- (One Hundred Thirty Crore Eighty-Eight Lakh Fifteen Thousand Twenty-Five Only), should not be held liable for confiscation (as the goods are not physically available for confiscation) under Sections 111(d), 111(m) and 111(o) of the Customs Act, 1962: (iv) Differential duty amount of Rs. 18,12,85,676/- (Rupees Eighteen Crore Twelve Lakh Eighty-Five Thousand Six Hundred Seventy-Six Only), arising due to wrong classification of the imported viewing cards resulting in non-payment of applicable Basic Customs Duty thereon, as detailed in Annexure A2.1 to this notice, should not be recovered from them, in terms of Section 28(4) of the Customs Act, 1962, for the period upto 30.06.2017 and in terms Of Section 28(4) of the Customs Act, 1962 read with Section 5(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight Hundred Thirty-Three Only) should not be held liable for confiscation (as the goods are not physically available for confiscation) under Sections 111(d), 111(m) and 111(o) of the Customs Act, 1962; (x) Differential duty amount of Rs. 11,41,95,552/- (Rupees Eleven Crore Forty-One Lakh Ninety-Five Thousand Five Hundred Fifty-Two Only), arising due to wrong availment of exemption under the said notifications as detailed above, on said imported Set Top Boxes, as detailed in Annexure C1.I should not be recovered from them, in terms of Section 28(4) of the Customs Act, 1962, for the period upto 30.06.2017 and in terms of Section 28(4) of the Customs Act, 1962 read with Section 5(1) of IGST Act, 2017 from 01.07.2017, read with Section 6 of Chapter V of the Taxation and other laws (relaxation of certain provisions) Ordinance, 2020 (2 of 2020) dated 31-3-2020; (xi) interest at the appropriate rate, on the duty recoverable from them as at (iv), (vii) and (x) above, should not be demanded and recovered from them under Section 28 AA of the said Act. (xii) Penalty should not be imposed on them, under Sections 112 and/or 114A of the Customs, Act, 1962, for the offences commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o made amendment to Section 4 and 5 of the Customs Act, 1962 vide Finance Act, 1998. W.P.No.27009 of 2020 : [ (Mr.P.Murugesan)-(Sl.No.16 in Table-II)] 130. The petitioner in W.P.No.27009 of 2020 has challenged the impugned Show Cause Notice dated 30.11.2021 issued by the Directorate of Revenue Intelligence (DRI), Chennai in respect of consignment which was originated from Bangalore. The prayer in this writ petition reads as under: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for the records pertaining to the impugned Show Cause Notice in F.No.DRI/CZU/VII/48/Enq 01/INT-03/2021 dated 30.11.2021 issued by the respondent herein and to quash the same in view of the judgement rendered by the Hon'ble Supreme Court in the case of Canon India Private Limited Vs. The Commissioner of Customs in Civil Appeal No.1827 of 2018 dated 09.03.2021. 131. It is the case of the petitioner that the petitioner is merely a Customs House Agent (CHA) who has proceeded for having filed the Shipping Bills under Section 50 of the Customs Act, 1962 for the export of goods for the exporter. It is submitted that based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers are appointed as Customs Officers, provided as under: ... In exercise of the powers conferred by subsection (1) of Section 4 of the Customs Act, 1962 (52 of 1962) and in suppression of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.38/63Customs, dated 1st February, 1963 the Central Government hereby appoints the following persons to be the officers of Customs, namely;- 4. All Officers of the Directorate of Revenue Intelligence. Under Notification No.17/2002Customs (NT) dated 07.03.2002, in exercise of the powers conferred by sub-section (1) of Section 4 of the Customs Act, 1962 (52 of 1962) and in super session of notification of the Government of India in the Ministry of Finance (Department of Revenue) No.19/90-Customs (N.T.), dated the 26th April, 1990, the Central Government appoints the officers ADG, DRI to be Commissioner of Customs, Additional Director/Joint Director to be Additional Commissioner/Joint Commissioner of Customs and Deputy Director/Assistant Director to be Deputy Commissioner/Assistant Commissioner of Customs for the whole of India (area of jurisdiction). 139. The learned Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable with reference to, inter alia, exemption or concession of customs duty vide Section 2(2)(c) of the Customs Act, 1962. W.P.No.26200 of 2021: [M/s.Bombardier Transportation India LimitedSl.No.17 in Table II] 142. The petitioner has challenged the impugned show cause notice issued by first respondent/Additional Director General, Directorate of Revenue Intelligence dated 19.01.2021 bearing reference F.No.DRI/CRU/VIII/26/ENQ-1/INT-6/2019. The prayer in this writ petition reads as under:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorari calling for the records relating to the impugned Show Cause Notice.F.No.DRI/CRU/VIII/26/ENQ1/INT-6/2019 dated 19.01.2021, issued by the first respondent and quash the same. 143. The Challenge to the impugned show cause notice is primarily on the strength of the decision of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs 2021 (376) ELT 3 (SC). It is submitted that though in Canon judgment, the Hon'ble Supreme Court has dealt with a definition of proper officer in Section 2(34) of the Customs Act, 1962 and Notification issued therein vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the scheme of the Customs Act, 1962, among courts it is only the Hon ble Supreme Court which is vested with the jurisdiction to decide issues arising out of rate of duty and valuation in the exercise of its appellate jurisdiction under Section 130E(b) of the Customs Act,1962. Even the High Court in its appellate jurisdiction is barred from deciding those issues. These issue on merits will have to be adjudicated by a competent officer and thereafter tested before the appellate authorities prescribed under the Customs Act,1962 in case it is held that these writ petitions fail. 150. Issues on merits are best left to be decided by the jurisdictional adjudicating authority and thereafter tested before the the appellate authority and finally by the Hon'ble Supreme Court in the hierarchy of the appellate authorities under the Customs Act, 1962. 151. Therefore, I will confine in this order only on the broad issue of jurisdiction of the officers of Directorate of Revenue Intelligence who have issued the Show cause notices to the petitioners. 152. In the case, if it is held that the initiation of proceedings by Directorate of Revenue Intelligence (DRI) was bad in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019; viii. M/s.Ajanata Overseas, 6/1, Furniture Block, Kirti Nagar, New Delhi vs. The Principal Commissioner of Customs, ICD-Imports, Tughlakabad, New Delhi 110 020. ix. M/s.Godrej Boyee Manufacturing Co., Ltd., vs. Union of India and Ors., C.M.5413-CWP-2021; x. Kitchen Essentials ors vs. The Union of India and Ors., 2021(10)TMI 1267; xi. Deepak Gopaldas Bajaj, M/s.Taher Impex Pvt.Ltd., vs. The Commissioner of Customs, Custom House, Tuticorin and two Others, 2021(10) TMI 122 xii. M/s.Steelman Industries vs. Union of India and Others, 2021(8)TMI 1236; xiii. Union of India vs. VICCO Laboratories, 2007(218) E.L.T.647 (S.C.) xiv. Kothari Petrochemicals Ltd., vs. Union of India, 2015(316) E.L.T.17 (Mad.); xv. Union of India vs.Kothari Petrochemicals Ltd., 2019(367)E.L.T.530 (Mad.) xvi. Masterstroke Freight Forwarders P.Ltd. vs. C.C.(1) Chennai-1, 2016(332) E.L.T.300 (Mad.); xvii. Vendhar Movies vs. Jt.Dir.,D.G.Of GST Intelligence, Chennai, 2019(28) G.S.T.L.545(Mad.); xviii. Simplex Infrastructures Ltd., vs. Union of India, 2020(374) E.L.T.574(Mad.) xix. Siements Ltd. vs. State of Maharashtra, 2006(12)TMI 203; xx. SBQ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Preventive) to issue Show Cause Notice was questioned in the reply to the Show Cause Notice by referring to Notification No. 251/83 and Notification No.250/83. The Collector of Customs (Preventive) rejected the submission on the jurisdiction. The demand was thus confirmed by the Collector of Customs (Preventive) vide Order dated 19.08.1996. The matter was taken up before the Tribunal, wherein, it was held that the Commissioner of Customs (Preventive) does not have jurisdiction to issue Show Cause Notice and therefore he did not have the jurisdiction to adjudicate the matter when the imports had taken place within the Bombay Customs House. 161. The Hon'ble Supreme Court after referring to Section 28 of the Customs Act, 1962 as it stood during the period in dispute concluded that from a conjoint reading of Section 2(34) and Section 28 of the Customs Act, 1962, it is manifest that only such a customs officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, either by the Board or the Commissioner of Customs, in terms of Section 2(34) of the Customs Act, 1962 was compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in 2011 was only prospective and not retrospective, the Department preferred an appeal before the Hon'ble Supreme Court. The appeal has to been admitted. The order of the Delhi High Court has been stayed by the Hon'ble Supreme Court in Mangali Impex and Ors. Vs. Union of India, 2017 (349) E.L.T. A98. 167. A reading of the Order of the Tribunal dated 13.02.2020 which was challenged in Commissioner of Customs Kandla vs. Agarwal Metals and Alloys, 2021(378) E.L.T.7 (SC.) shows that the challenge to the proceeding before the Tribunal was not on the ground of jurisdiction. It was purely on merits. 168. The Order of the Tribunal dated 13.02.2020 vide Final Order No.A/10478-10481/2020 arose from Order in Original KND Custom000-19-8-19 dated 26.03.2019 of Commissioner of Central Excise, Customs Service Tax- Kandla. 169. The appellant Agarwal Metals and Alloys, was issued with show cause notice. It appears that statements were recorded before the Directorate of Revenue Intelligence ( DRI) as is evident from a reading of para No.11.5 of the order of the Hon'ble Supreme Court in the said decision, which reads as under:- 11.5 The Adjudicating Authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (Customs and Central Excise) iv. Directorate of Housing and Welfare v. National Academy of Customs, Excise Narcotics vi. Directorate of Vigilance vii. Directorate of Systems viii. Directorate of Audit ix. Directorate of Safeguards x. Directorate of Export Promotion xi. Directorate of Service Act xii. Directorate of Valuation xiii. Directorate of Publicity and Publicity Relations xiv. Directorate of Organisation and Personnel Management xv. Directorate of Logistics xvi. Directorate of Legal Affairs xvii .Directorate of Data Management 172. These Directorates function under the Board and its Directors. The Officers, from the Customs and Central Excise Department and other Departments are on deputation to the Directorate of Revenue Intelligence (DRI). They have been recognized as Officers of Customs under Section 4(1) of the Customs Act, 1962 read with Notification issued thereunder. It will be therefore useful to refer to the history of the Directorate of Revenue Intelligence (DRI). 173. The Directorate of Revenue Intelligence (DRI) was constituted on the 4th of December, 1957 when Sea Custom Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Many handicaps such as want of trained manpower and adequate resources in the form of equipments and absence of precise intelligence made our frontiers more vulnerable to economic exploitation. Added to it was the temptation to evade taxes and controls which was fuelled on account of growing demand for foreign articles which otherwise were subject to high taxation rates and non-tariff barriers on account of the need to foster indigenous industry and to conserve the country's fast dwindling foreign exchange reserves. A need was felt to have a centralized agency in India to deal with cases of violations of Customs laws, having ramifications beyond the geographical jurisdiction of localized field formations and for collection, co- ordination and correlation of intelligence with respect to violation of these laws and also to furnish specialized know-how. A beginning was made in 1953, when a nucleus cell, christened 'C.R.I.B.' (Central Revenue Intelligence Bureau), charged with the responsibility of dealing with all matters connected with anti-smuggling and anti-corruption in the Customs and Central Excise organizations all over India was constituted. It was a smal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 lakhs of rupees and about 25 vehicles including motor cars, auto rikshaws etc. and the current investigation into the seizure of Rs. 1.5 Crores worth of diamonds from Shri Zainal Ali Raza of Bombay. In particular, the mopping up of the smugglers on such a large scale at Jamnagar has virtually broken up a powerful and organized gang, whose activities introduced about six to eight crores of rupees worth of gold every year into the country and export of currency or other goods and services of equivalent value out of it. The Finance Secretary noted as below: - The essential features of the proposed organization are: i. It is designed to collect and collate information and to strike swiftly; ii. It is officer-intensive and the ministerial staff has been kept at a minimum; iii. Although small, it is a high-powered organization so that it can issue instructions to Collectors and can command the confidence and respect of the other State and Central organizations with which it has necessarily to deal in order to become effective; iv. It will consist of selected officers, that is, those who by temperament and experience, are equipped to do this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be appointed for the purpose of this Act. 180. Section 3 of the Customs Act, 1962 has been partially amended vide Finance Act, 2022. Now, the officers from the Directorate of Revenue Intelligence (DRI) and others have been specifically included in the class of Officers of Customs. Sub-clause (i) to Section 3 (Subclause (k) to Section 3 as amended) has to be read in conjunction with sub-clause (2) to Section 4 of the Act. For comparison, both amended and unamended Section 3 of the Customs Act, 1962 are reproduced below:- Unamended Section 3 of the Customs Act, 1962 Amended Section 3 of the Customs Act vide Finance Act, 2022 w.e.f 1.4.2022 There shall be the following classes of officers of customs namely, a) Principal Chief Commissioner of Customs; b) Chief Commissioner of Customs); c) Principal Commissioner of Customs; d) Commissioner of Customs; e) Commissioners of Customs (Appeals); f) Joint Commissioner of Customs; g) Deputy Commissioner of Customs; h) Assistant Commissioner of Customs; i) such other class of officers of cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3(i) of the Customs Act, 1962 [presently Section 3(k)]. It is Group 'B' Officers who are appointed under these two sub-Sections. 184. Prior to 08.04.2011, Group 'B' Executive- Gazetted Officers namely the Superintendent of Customs (Preventive) and the Appraiser of Customs were also given the task of making assessment of the Bill(s) of Entry and Shipping Bill(s) under Section 17 and 18 of the Customs Act,1962. 185. Earlier, the Senior officers from the rank of the Assistant Commissioner of Customs were already exercising the power to issue Demand Notice and Show Cause Notices under Section 28 and other provisions of the Customs Act, 1962 and to adjudicate the same, though assessment of Bill(s) of Entry and Shipping Bill(s) was mostly left to the officer in the field namely, the Appraisers of Customs and Superintendent of Customs. The power to issue show cause notice/demand notice and adjudicate them was left to senior officers from Group. There were only pecuniary/monetary limitation by virtue of Board Circulars. Reference may be made to Board s Circular No. 87/2002-Cus., dated 17-12-2002 [2003 (151) E.L.T. T 12] and Board Circular No. 23/2009-Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods before clearance. However, after the above amendment there is no assessment of Bill(s) of Entry under Section 46 of the Act or an Exporter filing Shipping Bill(s) under Section 50 of the Act by a Proper Officer . I shall discuss this in next few paragraphs in Part VIII. PART VII - NOTE ON CADRE IN THE CUSTOMS DEPARTMENT 190. The cadre in the Customs and Central Excise Department (presently the Central Tax Department) consists of Group-A, Group-B, Group-C and Group-D cadre. Officers from the Group-A cadre are under the direct supervision of the Board. 191. Officers from the Group-A cadre are appointed eitherby Direct Recruitment by the Union Public Service Commission (UPSC) or by promotion from Group B. Group-A Officers belong to the prestigious Indian Revenue Service (IRS) along with their counterparts under the Direct Tax enactments. It is one of the Union Civil Services. The Board Controls the officers in the Group A cadre. 192. Group-B, Group-C and Group- D Officers/Staffs are below Group-A Cadre Officers. Group-B Officers are selected by the Staff Selection Board through Competitive Exams. The control of the Group B , C D cadre Officers/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Central Excise, while Inspector (Preventive Officer) is the feeder grade for Superintendent of Customs (Preventive). 199. It is the officers from the Group 'B' cadre both Gazetted and Non-Gazetted who are the first interface with the importer or exporter at the time of import or export after these import and export documents are filed. It is they, who examine the Bill(s) of Entry filed under Section 46 and/or or Shipping Bill(s) filed under Section 50 of the Customs Act, 1962. 200.They are in the field and oversee the clearance of the import and export consignments. They have been appointed as officers of customs and further delegated with the powers and function to oversee the clearance of the goods/consignment at the time of export and import. Group 'B' Executive - Gazetted Officers have also been designated as Proper Officer for the purpose of Section 17 of the Customs Act, 1962. 201. For the purpose of this case, it will suffice to refer to Officers from Group-A and Group-B cadres as it is these officers who have been appointed as Proper officer for the purpose of issuance of Show Cause Notice/ Demand Notice and for adjudication. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed. (2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. (3) For the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information. (3) For verification of self-assessment under sub-section (2), the proper officer may require t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the reassessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. [(6) Where re-assessment has not been done or a speaking order has not been passed on reassessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed.] * Explanation.- For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received. * Sub Section 6 to Section 17 of the Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper officer at the Port at the time of clearance of import or export, merely reassess the self-assessment already made on the Bill(s) of Entry and/or Shipping Bill(s). They are normally not assigned with the function to adjudicate Show Cause Notices and/or Demand Notices under the various provisions of the Customs Act, 1962. 212. With effect from, 08.04.2011, there was no question of assessment of Bill(s) of Entry /Shipping Bill(s) by a proper officer . There is only self assessment by an importer or an exporter. There could be only re-assessment of Bill of Entry(s) or the Shipping Bill(s) by the proper officer under Section 17 of the Customs Act,1962. 213. If the proper officer was inclined to disagree with the self assessment made by an importer or an exporter as the case may be, the proper officer could make a re-assessment and pass a speaking order under Section 17(5) of the Customs Act, 1962. 214. If the self assessment is accepted, the proper officer appointed under Section 17 of the Customs Act, 1962 becomes functus officio under the scheme of the Act and the Notification issued for the aforesaid purpose. 215. Likewise, where there was a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torate of Revenue Intelligence (DRI) were mostly confined with the task of investigation. Over a period of time, they were empowered to issue Show Cause Notices and/or Demand Notices under various provisions of the Customs Act. Adjudication of the Show Cause Notices/Demand Notices were however left to the senior officer of customs from Group 'A' cadre of the Customs Department. However, they are empowered to act as proper officers not only for issuance of Show Cause Notice and/or Demand Notices but also for adjudication of such Show Cause Notices and/or Demand Notices. 221. The Hon ble Supreme Court appears to have not been informed about the important changes brought to Section 17 of the Customs Act, 1962 vide Section 38 of the Finance Act, 2011 with effect from 08.04.2011 when it passed its decision in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C.). Section 17 of the Act has undergone further changes. 222. The observation in paragraph 13 of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C.) that Where one officer has exercised his powers of assessment, the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officers of Directorate of Revenue Intelligence (DRI) as Proper Officer for the purpose of various provisions under the Customs Act, 1962 under Section 2(34) of the Customs Act, 1962. 227. Now Section 2(34) of the Act has also been amended under the Finance Act, 2022. Section 2(34) of the Act together with amendment is reproduced below:- Section 2(34) of the Customs Act, 1962 till passing of Finance Act, 2022 Section 2(34) of the Customs Act, 1962 after amendment vide Finance Act, 2022 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. 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 under Section 5. (Note: The Portion in Bold represents the amendment) 228. Board or the Principal Commissioner of Customs or Commissioner Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs) or Joint or Assistant Commissioner of Customs or Joint or Assistant Commissioner of Customs or Deputy Commissioner of Customs to appoint officers of customs below the rank of Assistant Commissioner of Customs.] 235. It must also be noted that it is these Officers of Customs whether under Section 3 or 4(1) of the Act who can be designated as proper officer as defined in Section 2(34) of the Customs Act, 1962 by a Notification. Notifications issued under Section 2(34) and 4(1) of the Act is internal arrangement for allocation of work among the officers of customs. PART IX - OFFICERS OF DIRECTORATE OF REVENUE INTELLIGENCE (DRI) ARE ALREADY OFFICERS OF CUSTOMS 236. The officers of the Directorate of Revenue Intelligence (DRI) have already been appointed as Officers of Customs under Notification issued under Section 4(1) of the Customs Act, 1962 vide Notification of the Government of India in the Ministry of Finance (Department of Revenue) No.186-Cus, dated 4th August, 1981. The said Notification was later superseded by Notification No.19/90- Cus (N.T.), dated 26.04.1990. 237. By Notification No.19/90- Cus (N.T.), dated 26.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Notification No.17/2002-Cus. (N.T.), dated 07.03.2002] 239. Notification No.17/2002-Cus. (N.T.), dated 07.03.2002 came into force on 25.10.2002 vide Notification No.63/2002-Cus. (N.T.) dated 03.10.2002. Notification No.17/2002-Cus. (N.T.), dated 07.03.2002 was further amended by Notification No.82/2014-Cus. (N.T.), dated 16.09.2014. 240. Thus, the officers from the Directorate of Revenue Intelligence have been appointed as Officers of Customs under Section 4 of the Customs Act, 1962 and therefore they are Proper Officers for the purpose of Section 2(34) of the Customs Act, 1962. This aspect was not brought to the attention of the Hon'ble Supreme Court in Canon India Private Ltd. case referred to supra. 241. With a view to streamline the allocation of work and for the purposes of Section 17 and Section 28 of the Customs Act, 1962, Notification No. 44/2011-Cus. (N.T.), dated 06.07.2011 was issued by the Board under Section 2(34) of the Act. 242. Notification No.44/2011-Cus. (N.T.), dated 06.07.2011 was issued under Section 2(34) of the Customs Act, 1962 for the purpose of identifying officers of customs for exercising the power and fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962, subject to such conditions and limitations as the Board may impose. 248. The power to be exercised may be subject to such conditions and limitations as the Board may impose on such an Officer of Customs . Such officers can also exercise the powers and discharge the duties conferred or imposed on any other officers of customs who is subordinate to such officers. This aspect was also not brought to the attention of the Hon ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs case referred to supra. 249. Only exception that has been provided was in Sub-Section (3) to Section 5 of the Act. As per Sub-Section 3 to Section 5 of the Act, a Commissioner (Appeals) cannot exercise the power and discharge the duties conferred or imposed on an Officer of Customs other than those specified in Section 108 of the Act and Chapter XV deals with the Appeals and Revisions. 250. Section 5 of the Customs Act, 1962 has also been amended in the Finance Act, 2022. Sub-Section (1A), (1B) and Sub-Section (4) and (5) to Section 5 of the Customs Act, 1962 have been now inserted. Section 5 as it stood prior to amendment and as it stands after amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms (whether or not of the same class) to have concurrent powers and functions to be performed under this Act. . (Note: The portion in Bold represents the amendment) 251. During the interregnum in 2012, a more comprehensive notification was issued vide Notification No.40/2012-Cus. (N.T.), dated 02.05.2012. This notification fell for consideration in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T.3(S.C). However, No.40/2012-Cus. (N.T.), dated 02.05.2012 cannot be read in isolation. It had to be read along with notifications issued under Section 4 of the Customs Act, 1962. 252. Notification No.40/2012-Cus. (N.T.), dated 02.05.2012 was also amended from time to time and has now been eventually rescinded/superseded by Notification No.26/2022-Cus. (N.T.), dated 313-2022 in tune with the amendment proposed in the Finance Bill, 2022 and passed by Finance Act, 2022. 253. Both Notification No.44/2011-Cus. (N.T.), dated 06.07.2011 and Notification No. 40/2012-Cus. (N.T.), dated 02.05.2012 as amended from time to time have also not been challenged directly by any of the petitioners. 254. Although, the vires of Notification No.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 I, Section 3, Sub-section (i)] 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 functions as the proper officers in relation to the various sections of the Customs Act, 1962, given in the corresponding entry in Column (3) of the said Table :- Sl. No. Designation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the State Government or a local authority any functions of the Board or any officer of customs under this Act. 21. If it was intended that officers of the Directorate 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 4-12-1957 issued by the Ministry of Finance and Customs officers who, till 115-2002, 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months , 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Vs. Sayed Ali and Another, 2011 (265) E.L.T. 17 (S.C.) nor in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T. 3 (S.C.). 259. Officers from the Directorate of Revenue Intelligence (DRI) are now explicitly recognized as Officers of Customs under the Customs Act, 1952 by virtue of the amendment to the Customs Act, 1962 vide amendment in the Finance Act, 2022. 260. That apart, there is validation of all action taken by such officers under Section 97 of the Finance Act, 2022. I have already extracted Section 97 of the Finance Act, 2022 earlier in this order. Therefore, these writ petitions are liable to be dismissed and the ground that the officers of the Directorate of Revenue Intelligence (DRI) have indeed the power to issue Show Cause Notice. The defence that they are incompetent is no longer available to these petitioners. 261. In fact, the Hon ble Supreme Court while considering the issue in paragraph 16 as to whether the officers namely the Additional Director General of Directorate of Revenue Intelligence (DRI) can be considered as the Proper Person has indicated the test by stating that Additional Director General can be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts other than the Officers of the Customs under Section 4 of the Customs Act, 1962. The Officers of the Directorate of Revenue Intelligence (DRI) are not any other officers of the Central Government or the State Government or the Local Authority to be entrusted with the function of the Board and the Customs Officers. The Officers of the Directorate of Revenue Intelligence (DRI) are already officers of the Customs by virtue of the Notification issued under Section 4(1) of the Customs Act, 1962. 268. To recognize the officers from Directorate of Revenue Intelligence as officers of Customs, the mechanism under Notification of the Central Government under Section 6 of the Customs Act, 1962 is not warranted. When Section 6 of the Customs Act, 1962 is invoked, the Central Government can entrust the function of Board and Customs officers on officers from other Departments specified therein. 269. By such entrustment, these officers of other Departments do not become Officers of Customs. They can merely function as such officers. Since entrustment under Section 6 is on the officers from other department, the Parliament by design has given the powers to the Central Government and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Customs or Joint or Assistant or Deputy Commissioner of Customs, to appoint Officers of Customs below the rank of Assistant Commissioner of Customs. Thus, the following Group 'B' Executive - Gazetted and Non-Gazetted Officers assist in the initial stage of assessment of goods as:- Sl. No. Group B Executive Gazetted Officer Group B Executive Non Gazetted Officer 1 Superintendent of Customs (Preventive) Preventive Officers (Customs) 2 Appraiser of Customs Examiner (Customs) 277. As mentioned above, assessment is neither by the Group 'B' Executive Gazetted Officer nor by Group 'B' Executive Non-Gazetted Officer after 08.04.2011. Only, prior to 08.04.2011, the assessment of goods at the port was vested with the Group 'B' Executive Gazetted Officer. However, after the said date, the fundamental of assessment has undergone a sea change and changed permanently as mentioned above. 278. These fundamental changes brought to the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elligence. Therefore, the consequential orders passed under Section 28 of the Customs Act or under Section 124 and other provisions of the Customs Act also cannot be assailed. 286. In Pahwa Chemicals Pvt. Ltd., Commissioner of Central Excise, 2005(181) ELT 339, the Hon'ble Supreme Court has held that even if an officer issues a noticee or adjudicates a Show Cause Notice, it would be not a ground for holding that he had no jurisdiction to issue show cause notice or to set aside the adjudication order. The notice issued can be adjudicated by the other Officers from the Customs Department. Paragraph 13 of the above decision, reads as under:- 13. In order to consider the powers of the Board, one needs to see certain provisions of the Act. Section 2(b) defines Central Excise Officer and it is mentioned therein that any officer of the Central Excise Department or any person who has been invested by the Board with any of the powers of the Central Excise Officer would be a Central Excise Officer. Thus, the Board has power to invest any Central Excise Officer or any other officer with powers of Central Excise Officer. By virtue of Section 37-B the Board can issue orders, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders-in-Originals were passed, I am inclined to quash those impugned Orders-in-Originals and remit the case back to the respective adjudicating authority to pass a speaking order de novo. 289. In case the respective adjudicating authority still want to rely on the statement of such third party, they shall produce them for crossexamination. On the other hand, if an independent evidence is available, cross-examination can be dispensed with. PART X CONCLUSION 290. In my view, what was implicit in the provisions of the Customs Act, 1962 has been now made by explicit in the amendment to the Customs Act, 1962 vide amendment in Finance Act, 2022. Therefore, these writ petitions are liable to be dismissed by giving liberty to the petitioners to work out their remedy before the alternate forum. 291. Thus, under the Customs Act, 1962, there are different Power Centres for appointing persons as Officers of Customs for discharging their powers and functions (duties) imposed under the Act. The contours of powers to be exercised by such Officers of Customs is to be drawn by the Board. Section 3, of the Customs Act, 1962, recognizes the classes of Officers of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) E.L.T. 3 (S.C.) fail. 300. In the result, the following Writ Petitions are dismissed with liberty to file a statutory appeal before the Central Excise, Customs and Service Tax Appellate Tribunal (CESTAT) within a period of thirty days from the date of receipt of a copy of this Order: i. W.P.No.33099 of 2015 filed by M/S.N.C.Alexander; ii. W.P No.27344 of 2017 filed by E.Duraisamy Brothers; and iii. W.P.No.12929 12933 filed by Farooq Ubaithulla. 301. If such appeals are filed within such time by the respective petitioners, the Registrar of the Central Excise, Customs and Service Tax Appellate Tribunal, Chennai (CESTAT) shall proceed to number the appeal without any further reference to limitation and list the case on their turn for final hearing before the Tribunal 302. Needless to state that the respective petitioners shall predeposit amount under Section 129E of the Customs Act, 1962 and produce the proof thereof along with the appeal. 303. W.P No.18918 of 2016 filed by Chirag U Jain is partly allowed and the impugned Order-in-Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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