TaxTMI 
TaxTMI 
2016 (1) TMI 875
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....fic allocation of functions to operate as "proper officer" under Section 2(34) of Customs Act, 1962, are pending with CESTAT. CESTAT in para 4 and 5 of the said order observed as under: "4. We have heard Shri Kamaljeet Singh, Shri Vasudevan and other Counsel representing the several assessees who are parties to appeals wherein jurisdictional competence of the DRl is also in issue. We have also heard ld. DR for Revenue, who contends that the issue is no longer res integra and is concluded by judgements of Gujarat and Bombay High Courts which have ruled, according to Revenue, that provisions of sub-section (11) of Section 28 of the Customs Act, 1962, inserted with effect from 16.9.2011 has removed the legislative deficit which had led to the Supreme Court pronouncement regarding incompetence of officers of DRl and Preventive Wings, who had initiated proceedings culminating into an order passed under Section 28 of the Act; and therefore the several appeals could be disposed of on merits after considering other issues urged on behalf of the assessees. Counsel for assessees however, contend that a challenge to provisions of Section 28(11) and the scope of the legislative and operative....
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....s, other than DRI officers, the former became "the" proper officers. In such circumstances, DRI officers issuing show cause notices would mean more than one authority assuming the role of "the" proper officer which would cause utter confusion as observed by Supreme Court in the case of CC Vs. Syed Ali - 2011 (265) ELT 17 (SC) and therefore such amendment would not be constitutionally valid. Further exercise of jurisdiction by one officer would exclude the jurisdiction of other officers and as assessment had already been done by the assessing officer, DRI would not be eligible to issue the show cause notice. They cited the judgements in the case of Kenapo Textiles Pvt. Ltd. and Another Vs. State of Haryana & Others [84 STC 88], India Household and Healthcare Ltd. Vs. LG Household and Healthcare Ltd. (2007) 5 SCC 510. 4. The ld. Advocates also put forth several contentions to challenge the constitutional validity of Section 28(11] ibid but conceded that CESTAT cannot determine the constitutional validity of Section 28(11]. 5. Ld. Departmental Representative, on the other hand, stated that: [i) Section 28(11) has been expressly made retrospectively applicable and CESTAT is n....
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.... had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purpose of this section (i.e. Section 28). It is not in dispute that DRI officers who issued the show cause notices were appointed as officers of Customs under sub-section 1 of Section 4 before 6.7.2011, Therefore in terms of Section 28(11) show cause notices issued by such DRI officers cannot be said to have been issued by officers not authorized to do so. 8. A lot of stress was laid by ld. Advocates on Explanation 2 to sub- section 11 of Section 28 to contend that this sub-section applied to new Section of 28 which came into effect from 8.4.2011 and that the said Explanation makes it clear that any non-levy or short levy before 8.4.2011 (when the Finance Bill 2011 received the President's assent) were to be governed by the provisions of Section 28 as it existed prior to 8.4.2011 and that Section 28 (prior to 8.4.2011) did not have any provision similar to sub section 11 of "new" Section 28. Therefore the ld. Advocates contended, the show cause notices issued by DRI prior to 8.4.2011 would still continue to be treated as having been issued by officers....
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....y mobilized in cases already adjudicated. However, having regard to the urgency of the matter, the Government issued notification on 6th July, 2011 specifically declaring certain officers as proper officers for the aforesaid purposes. 3. In the circumstances, it has become necessary to clarify the true legislative intent that Show Cause Notices issued by Customs officers, i.e., officers of the Commissionerates of Customs (Preventive), Directorate General of Revenue Intelligence (DRI), Directorate General of Central Excise Intelligence (DGCEI) and Central Excise Commissionerates for demanding customs duty not levied or short levied or erroneously refunded in respect of goods imported are valid, irrespective of the fact that any specific assignment as proper officer was issued or not. It is, therefore, purposed to amend the Customs Act, 1962 retrospectively and to validate anything done or any action taken under the said Act in pursuance of the provisions of the said Act at all material times irrespective of issuance of any specific assignment on 6th July, 2011. 4. The Bill seeks to achieve the above objects. NEW DELHI; PRANAB MUKHERJEE The 2nd August, 2011. To interpret the....
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....t been dealing with the case, which was specifically dealt with by sub-section (11) of Section 28 of the Act, that we are of the opinion that the challenge in the Writ Petition is without any merit The Explanation removes the doubts and states that even those cases which are governed by Section 28 and whether initiated prior to the Finance Bill, 2011 receiving the assent of the President shall continue to be governed by Section 28, as it stood immediately before the date on which such assent is received. The reference to Finance Bill therein denotes the bill by the section itself was substituted by Act 8 of 2011 w.e.f. 8th April, 2011. Prior to this Bill by which the section was substituted receiving the assent of the President of India, some cases were initiated and Section 28 was resorted to by the authorities. The Explanation 2 clarifies that they will proceed in terms of the un-amended provision. The position dealt with by insertion of Section 28(11) is distinct and that is about competence of the officer. The officers namely those from the Directorate of Revenue Intelligence having been entrusted and assigned the functions as noted above, they are deemed to have been possessin....
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....holding the field, not designating the Collector of Customs (Preventive) as a proper officer for the purpose of Section 28 as it then stood, he was not competent to issue show cause notice (see para 24 of Sayed Ali's Judgment). This position has now undergone a change and from 6th July, 2011, admittedly, they have been assigned these functions and of the Custom officers. They are therefore competent and the Notification in that behalf at page 373 of the paper book has been given a retrospective effect. It is not the argument of Mr. Singh that the law cannot be amended retrospectively. It is also not his argument that the validating Act does not validate anything which may be or is invalid. In the circumstances and the Parliament being competent to make such a law, we find no force in the arguments canvassed before us. Once the above view is taken, then, no reference is required to be made to the other Judgments cited by both Mr. Singh and Mr.Jetly." 9. As argued by ld. DR the said judgment of Bombay High Court has been followed by CESTAT in several judgements mentioned earlier. The issue has also been settled in favour of Revenue by Gujarat high Court in Swati Menthol and Alli....