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TMI Blog2025 (2) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... on was kept pending because of the pendency of Review Petition No. 400 of 2021 before the Hon'ble Supreme Court in the case of Canon India Private Limited (Civil Appeal No. 1827 of 2018) wherein the Hon'ble Supreme Court had held that DRI officers cannot be considered as a "proper officer" for issuing the show cause notice. 4. The Supreme Court vide its order dated 7th November, 2024 has disposed of the review petition by observing that the decision passed in the Canon India Private Limited (supra) did not consider the notification and provisions of law since same was not brought to their notice. The Supreme Court in review petition held that the DRI officer is the "proper officer" for issuing the show cause notice. The Supreme Court also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) was rendered without looking into the circular and the notification referred to above thereby seriously affecting the correctness of the same. (b) The decision in Canon India (supra) failed to consider the statutory scheme of Sections 2 (34) and 5 of the Act, 1962 respectively. As a result, the decision erroneously recorded the finding that since DRI officers were not entrusted with the functions of a proper officer for the purposes of Section 28 in accordance with Section 6, they did not possess the jurisdiction to issue show cause notices for the recovery of duty under Section 28 of the Act, 1962. (c) The reliance placed in Canon India (supra) on the decision in Sayed Ali (supra) is misplaced for two reasons - first, Sayed Ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (11) could not be said to have curved the defect pointed out in Sayed Ali (supra) as the possibility of chaos and confusion would continue to subsist despite the introduction of the said section with retrospective effect. In view of this, the High Court declined to give retrospective operation to Section 28(11) for the period prior to 08.04.2011 by harmoniously construing it with Explanation 2 to Section 28 of the Act, 1962. We are of the considered view that the decision in Mangali Impex (supra) failed to take into account the policy being followed by the Customs department since 1999 which provides for the exclusion of jurisdiction of all other proper officers once a show cause notice by a particular proper officer is issued. It could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate General of Central Excise Intelligence and Commissionerates of Central Excise and other similarly situated officers are proper officers for the purposes of Section 28 and are competent to issue show cause notice thereunder. Therefore, any challenge made to the maintainability of such show cause notices issued by this particular class of officers, on the ground of want of jurisdiction for not being the proper officer, which remain pending before various forums, shall now be dealt with in the following manner: a. Where the show cause notices issued under Section 28 of the Act, 1962 have been challenged before the High Courts directly by way of a writ petition, the respective High Court shall dispose of such writ petitions in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of such appeals or writ petitions in accordance with the ruling in this judgment and restore such notices to the CESTAT for hearing the matter on merits. f. Where appeals against the orders-in-original involving issues pertaining to the jurisdiction of the proper officer to issue show cause notices under Section 28 are pending before the CESTAT, they shall now be decided in accordance with the observations made in this decision." 6. In this Petition, Clause (vi)(c) of paragraph 168 would be relevant. Accordingly, we dispose of this Petition by passing the following order consistent with Paragraph 168 (vi) (c) of the Hon'ble Supreme Court order. 7. The Petitioner is granted twelve weeks time [from the date of uploading of this ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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