9911796707
TMI Blog2025 (3) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh hybrid mode. 2. This writ petition is part of a batch of petitions that were filed under Article 226 of the Constitution of India, praying for a direction to quash 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be set aside." 3. However, vide order dated 25th September, 2025, the predecessor bench of this Court had adjourned this batch of matters sine die upon being informed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very 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 (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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment 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 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 Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be said to be unconstitutional. It cannot be said that Section 97 fails to cure the defect pointed out in Canon India (supra) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices or pass adjudication orders. However there are various other issues that have been raised in some matters, which are not common across all petitions. Accordingly, 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 which is under challenge is dated 1st May, 2019 issued by the DRI, Mumbai Zonal Unit. This would be covered by directions given in paragraph 168 (vi) (a) of the Canon-II judgment extracted above, wherein the adjudication of the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
