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2023 (2) TMI 106 - HC - CustomsPower and function of Proper officers to issue Notice under the second proviso to Section 124 of Customs Act 1962 - notice issued by the Joint Director, DRI, is in consonance with the Notification No.25/2022 and Notification No.26/2022 or not - HELD THAT - The Notification No.25/2022 dated 31.03.2022 has been issued in exercise of powers conferred by Section 3(1) of Section 4 and Section 5((1)(4)(5) of the 1962 Act, wherein the Joint Director, DRI has been invested with all powers of the Joint Commissioner of Customs. As per Notification No.25/2022 dated 31.03.2022, the Deputy Director and Assistant Director, DRI have been invested with the powers of the Deputy Commissioner and Assistant Commissioner of Customs - in terms of Notification No.26/2022, even a Joint Director, DRI, who is above the rank of Deputy Commissioner or Assistant Commissioner of Customs is a proper officer to issue a Notice under the second proviso to Section 124 of the 1962 Act. There is nothing in the Notification No.26/2022 showing that there is a bar on the Joint Director, DRI for issuing a Notice under Section 124 of the 1962 Act. In fact, Section 124 of the 1962 Act provides that no order, confiscating any goods or imposing any penalty on any person, shall be made under Chapter XIV of the 1962 Act, unless the owner of the goods or such person is given a notice in writing, with prior approval of the officer of Customs not below the rank of Assistant Commissioner of Customs, informing him of the ground which it is proposes to confiscate the goods or to impose the penalty. It clearly shows that there is no bar on the Joint Director, DRI to issue a notice under Section 124 of the 1962 Act. The petitioner is given the liberty to file her reply to the show-cause notice dated 23.09.2022 before the Joint Director, DRI, Guwahati, who shall thereafter transmit the same to the Adjudicating Authority under the 1962 Act - Petition dismissed.
Issues:
1. Validity of the Notice issued under Section 124 of the Customs Act, 1962 by the Joint Director, DRI. 2. Interpretation of the definition of "proper officer" under Section 2(34) of the Customs Act, 1962. 3. Compliance with Notifications No.25/2022 and No.26/2022 dated 31.03.2022 regarding the powers and functions of customs officers. Analysis: Issue 1: Validity of the Notice under Section 124: The case involved a challenge to the Notice issued under Section 124 of the Customs Act, 1962 by the Joint Director, DRI. The petitioner argued that the Notice was not in line with Notifications No.25/2022 and No.26/2022. The respondent contended that the Joint Director, DRI, being equivalent to a Joint Commissioner of Customs, was authorized to issue such a Notice. The court examined Section 124 and the relevant notifications to determine the validity of the Notice. Issue 2: Interpretation of "Proper Officer" under Section 2(34): The petitioner's counsel relied on Section 2(34) of the Customs Act, 1962 to argue that the Joint Director, DRI was not designated as a proper officer to issue the Notice under Section 124. The court analyzed the provisions of Section 2(34) which define a proper officer as designated by the CBIT or Customs authorities. The court assessed whether the Joint Director, DRI fell within the definition of a proper officer as per the Act. Issue 3: Compliance with Notifications No.25/2022 and No.26/2022: The dispute also revolved around the compliance with Notifications No.25/2022 and No.26/2022 issued by the CBIT regarding the powers and functions of customs officers. The petitioner argued that the Joint Director, DRI was not authorized to issue the Notice under Section 124 based on these notifications. The court scrutinized the notifications and their implications on the authority of officers to issue such Notices under the Customs Act, 1962. In its judgment, the court referred to the relevant sections of the Customs Act, 1962 and the notifications issued by the CBIT. The court concluded that the Joint Director, DRI was indeed authorized to issue the Notice under Section 124 based on the notifications and the hierarchy of customs officers. Consequently, the court dismissed the writ petition, granting the petitioner the opportunity to respond to the show-cause notice within a specified timeframe. The judgment emphasized the importance of adherence to statutory provisions and notifications in matters concerning customs enforcement and procedural requirements.
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