9911796707
TMI Blog2025 (3) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... uash refund proceedings initiated by the Directorate of Revenue Intelligence ('DRI') officials against the Petitioner/s on the ground that DRI officials lack jurisdiction under Section 28 of the Customs Act, 1962. Reliance was primarily placed on the Supreme Court decision in Canon India Pvt. Ltd. v. Commissioner of Customs, 2021 (3) TMI 384 (hereinafter 'Canon-I'), which had held that DRI Officials were not 'proper officers' for the purpose of refund proceedings under Section 28. The operative portion of the Canon-I (Supra) reads as under: "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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med that the Respondent/Department had preferred a review petition against the decision in Canon-I vide Review Petition (Civil) No. 400/2021 titled 'Commissioner of Customs v. M/s Canon India Private Limited'. 4. Today, the Court is informed that said review petition has been finally decided by the Supreme Court vide its judgment dated 7th November, 2024 and the operative portion reads as under: "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 This notification later came to be superseded by Notification No. 17/2002 dated 07.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 show cause notices issued by the DRI officers w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 all show cause notices issued under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 respective High Court shall gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, in each of these matters, the Court will have to determine whether they are liable to be disposed of in light of the Supreme Court's decision in Canon - II (Supra) or if any outstanding issues remain to be adjudicated. 6. Accordingly, the Court proceeds to consider each of the matters. 7. In the present petition, the show cause notice dated 17th November 2017 issued by the DRI, Lucknow Zonal Unit is challenged. This SCN would be covered by directions given in paragraph 168 (vi) (a) of the Canon-II (Supra). 8. Accordingly, the proceedings in the show cause notice under challenge dated 17th November 2017 shall now proceed before the adjudicating authority in accordance with law. 9. Since the writ petition was pending for a long p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
