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TMI Blog2024 (12) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of law since the same was not brought to their notice. The Supreme Court, in the review petition, held that a DRI officer is a proper officer for issuing show cause notice. The Hon ble Supreme Court also upheld the Validation Act by which amendment, the DRI officers were empowered to issue show cause notice. Now that the review petition filed by the revenue has been allowed, the petition is taken up for disposal. The learned counsel for the Petitioner states that the Petitioner has already filed an appeal against the Order-in-Original dated 5 October 2017. Accordingly, the Appellate Authority, should proceed to decide this appeal following law. This Petition is disposed of. - M. S. SONAK JITENDRA JAIN, JJ. For the Petitioner: Mr. Gop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer is a proper officer for issuing show cause notice. The Hon ble Supreme Court also upheld the Validation Act by which amendment, the DRI officers were empowered to issue show cause notice. Now that the review petition filed by the revenue has been allowed, the petition is taken up for disposal. 7. The reasons/directions recorded in paragraph 168 of the Hon ble Supreme Court s order dated 7 November 2024, is reproduced below for the convenience of reference:- 168. In view of the aforesaid discussion, we conclude that: (i) DRI officers came to be appointed as the officers of customs vide Notification No. 19/90-Cus (N.T.) dated 26.04.1990 issued by the Department of Revenue, Ministry of Finance, Government of India. This notification later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Sayed Ali (supra) is misplaced for two reasons first, Sayed Ali (supra) dealt with the case of officers of customs (Preventive), who, on the date of the decision in Sayed Ali (supra) were not empowered to issue show cause notices under Section 28 of the Act, 1962 unlike the officers of DRI; and secondly, the decision in Sayed Ali (supra) took into consideration Section 17 of the Act, 1962 as it stood prior to its amendment by the Finance Act, 2011. However, the assessment orders, in respect of which the show cause notices under challenge in Canon India (supra) were issued, were passed under Section 17 of the Act, 1962 as amended by the Finance Act, 2011. (iii) This Court in Canon India (supra) based its judgment on two grounds: (1) the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a particular proper officer is issued. It could be said that this policy provides a sufficient safeguard against the apprehension of the issuance of multiple show cause notices to the same assessee under Section 28 of the Act, 1962. Further, the High Court could not have applied the doctrine of harmonious construction to harmonise Section 28 (11) with Explanation 2 because Section 28 (11) and Explanation 2 operate in two distinct fields and no inherent contradiction can be said to exist between the two. Therefore, we set aside the decision in Mangali Impex (supra) and approve the view taken by the High Court of Bombay in the case of Sunil Gupta (supra). (v) Section 97 of the Finance Act, 2022 which, inter-alia, retrospectively validated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch writ petitions in accordance with the observations made in this judgment and restore such notices for adjudication by the proper officer under Section 28. b. Where the writ petitions have been disposed of by the respective High Court and appeals have been preferred against such orders which are pending before this Court, they shall be disposed of in accordance with this decision and the show cause notices impugned therein shall be restored for adjudication by the proper officer under Section 28. c. Where the orders-in-original passed by the adjudicating authority under Section 28 have been challenged before the High Courts on the ground of maintainability due to lack of jurisdiction of the proper officer to issue show cause notices, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady filed an appeal against the Order-in-Original dated 5 October 2017. Accordingly, the Appellate Authority, should proceed to decide this appeal following law. 10. Insofar as the challenge to Note 3 of the Notification is concerned; we need to observe that this very challenge was raised by the Petitioner in Writ Petition No.3079 of 2014, by which the Petitioner had challenged the show cause notice dated 18 December 2014. By our judgment and order dated 13 August 2015, we had declined to interfere with the show cause notice and relegated the Petitioner to respond to the same. However, in paragraph 12 of our judgment and order, we had explicitly granted the Petitioner liberty to challenge the said Note 3 in appropriate proceedings, includin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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