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M/s Mangali Impex Ltd., M/s Pace International And Others Versus Union of India And Others

Proper officer - Juridiction to issue Show Cause Notice - Constitutional validity and effect of Section 28(11) of the Customs Act, 1962 - inserted by the Customs (Amendment and Validation) Act, 2011 (“Validation Act, 2011”) with effect from 16th September 2011 - In terms of Section 28(11) of the Act, all persons appointed as Customs Officers under Section 4(1) of the Act prior to 6th July 2011 “shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to .....

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assigning of the functions of reassessment or assessment in favour of such officers who issued such SCNs since they were not “proper officers” for the purposes of Section 2(34) of the Act and further because Explanation 2 to Section 28 as presently enacted makes it explicit that such non-levy, short-levy or erroneous refund prior to 8th April 2011 would continue to be governed only by Section 28 as it stood prior to that date and not the newly re-cast Section 28 of the Act. - Section 28(11) .....

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Sayed Ali (supra) should not come about, there cannot be any duplicating and/or overlapping of jurisdiction of the officers. It would have to be ensured through proper co-ordination and administrative instructions issued by the CBEC that once a SCN is issued specifying the adjudicating officer to whom it is answerable, then that adjudication officer, subject to such officer being a 'proper officer' to whom the function of assessment has been assigned in terms of Section 2(34) of the Act, will al .....

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cised such power for a period prior to 8th April 2011. Further in terms of Explanation 2 to Section 28 as has presently been enacted with effect from 8th April 2011, for the period prior to 8th April 2011, Section 28 of the Act as it stood prior to that date will apply and not the new Section 28 of the Act. That being the position, the proceedings pursuant to the above SCNs issued by the ADG, DRI regarding non-levy, short-levy or erroneous refund prior to 8th April 2011, cannot be legally sustai .....

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nnot seek to rely on Section 28(11) of the Act to validate the SCN issued by the Assistant Commissioner of Customs, SIIB to the Petitioner on 31st October 2003. As has already been held by the Court, Section 28(11) of the Act cannot validate SCNs or proceedings pursuant thereto in relation to non-levy, short-levy or erroneous refund for a period prior to 8th April 2011 if such SCNs have been issued or proceedings conducted by officers of the Customs, DRI or DGCEI or as in the present case by the .....

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34) of the Act. Counter affidavit filed where it is denied that at the time when the SCN was issued i.e. 30th April 2010, the ADG, DRI was not assigned the function of assessment under Section 17 and reassessment under Section 28 of the Act and was, therefore, not a “proper officer” for the purposes of Section 2(34) of the Act - Held that:- the recourse to Section 28(11) of the Act as introduced with effect from 8th July 2011 cannot be had to validate the impugned SCN particularly in view of Exp .....

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ing on hold various consignments of woollen carpets sought to be exported by the Petitioner - Held that:- it is clear that in relation to the events that took place prior to 8th April 2011 no SCN could have been issued to the Petitioner by the Commissioner of Customs (Preventive) who admittedly is not a “proper officer” in terms of the Section 2(34) of the Act. Section 28(11) of the Act cannot be resorted to for validating the said SCN and proceedings pursuant thereto. Therefore, the impugned SC .....

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dication under Section 4 of the Act and consequent order dated 16th December 2013 passed by the Commissioner of Customs (Import & General) - At the time when the SCN was issued to the Petitioner by the DRI there was no assignment of the functions of assessment or reassessment under the Act in favour of the DRI in so far as it pertains to events that occurred prior to 8th April 2011 - Held that:- Section 28(11) of the Act cannot be relied upon to validate the SCN issued in relation to non-levy, s .....

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- Held that:- for the reasons already mentioned, the said SCN and all the proceedings consequent thereto for the period from 28th January 2011 up to 8th April 2011 cannot be sustained in law and are hereby quashed. The adjudication proceedings as regards further period beyond 8th April 2011 will proceed in accordance with law. - Validity of SCN dated 31st October 2008 issued by the ADG, DRI, Delhi and Circular No. 44/2011-Cus dated 23rd September 2011 issued consequent upon the insertion of .....

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er 2008 and the Circular dated 23rd September 2011 are hereby quashed. - Validity of SCN dated 14th March 2011 issued by the ADG, DRI - alleged imports made through the ICD, Tughlakabad during the period prior thereto - Held that:- in light of the above discussion, with the ADG, DRI not being the “proper officer” under Section 2(34) of the Act at the time when the SCN was issued, Section 28(11) of the Act cannot be referred to for validating the acts and the SCN issued by the ADG, DRI. Since .....

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nce during the said period the ADG, DRI had no power of assessment or reassessment. To that extent the impugned SCN and all proceedings pursuant thereto for the period prior to 8th April 2011 are hereby quashed. However, for the period subsequent to 8th April 2011 the proceedings may go on in accordance with law. - Validity of SCN dated 2nd April 2009 issued by the DRI and for declaring Section 28(11) of the Act to be constitutionally invalid - Held that:- it is not in dispute that at the ti .....

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oper officer” for the purposes of Section 2(34) of the Act. Therefore, the impugned SCN dated 2nd December 2013 and all proceedings consequent thereto to the extent they pertain to the period prior to 8th April 2011 are hereby quashed. The proceedings for the subsequent period may go on in accordance with law. - Validity of SCN dated 2nd December 2013 issued by the ADG, DRI - Held that:- the impugned SCN are hereby quashed to the extent they pertain to the period prior to 8th April 2011. The .....

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ed 7th November 2013 issued by the ADG, DRI - Imports of “Narrow Woven Fabrics” from China during the period 8th November 2008 to 30th November 2010, i.e., a period prior to 8th April 2011 - Held that:- for the reasons already discussed, the said SCN dated 7th November 2013 and all proceedings consequent thereto are hereby quashed. - Validity of SCN dated 9th June 2014 issued by the ADG, DRI - Invokation of Section 124 of the Act and Section 28 read with Section 9A of the Customs Tariff Act, .....

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er DEPB credit for the period prior to 8th April 2011 - Held that:- for the reasons already mentioned, the impugned SCN and all proceedings consequent thereto stand hereby quashed. - Validity of SCN dated 20th November 2014 issued by the ADG, DRI - Section 124 of the Customs Act read with Section 9A of the Customs Tariff Act, 1975 - Import of Color Picture Tubes in the year 2010 - Held that:- for the reasons already mentioned, the impugned SCN and all proceedings consequent thereto are unsus .....

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etitioner - allegedly mis-declaring and undervaluing the import in connivance with the various Registrars of Newspapers in India - Demand of duty - appeal filed before the CESTAT against the said order is still pending and the CESTAT has required the Petitioner to deposit the 10% duty amount as a pre-deposit - Held that:- the SCN was issued by the ADG, DRI who at the time of issuance of the said SCN had not been assigned functions by the CBEC of assessment or reassessment and, therefore, is not .....

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3 & CM 17295/2013, W.P.(C) 211/2014 & CM 389/2014, W.P.(C) 863/2014 & CM 1731/2014 , W.P.(C) 3803/2014 & CM 7658/2014, W.P.(C) 5262/2014, W.P.(C) 5877/2014 & CM 14409/2014, W.P.(C) 4162/2015 & CM 10559/2015, W.P.(C) 11285/2015 , W.P.(C) 11853/2015 & CM 31504/2015 , W.P.(C) 11854/2015 & CM 31506/2015 , W.P.(C) 563/2016 & CM 2353/2016, W.P.(C) 1185/2013 & CM 2240/2013, W.P.(C) 7383/2013 & CM 15847/2013, W.P.(C) 225/2014 & CM 416/2014 , W.P.(C) 4841/2 .....

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p; ANR. BHARAT SANCHAR NIGAM LIMITED SATYAM MARKETING THROUGH: ITS PROPRIETOR MANOJ SABOO @ MANOJ MAHESHWARI HANSRAJ BHATIA & CO. THROUGH: ITS PROPRIETOR SHRI SANJEEV BHATIA M/S. J.R. INTERNATIONAL BHAGWATI COMPONENTS MFG.CO. THROUGH: ITS DIRECTOR MR. SURJIT SINGH JUDGMENT Dr. S. Muralidhar, J. Introduction 1. The common question in this batch of matters pertains to the constitutional validity of Section 28 (11) of the Customs Act, 1962 ( Act ) which was inserted by the Customs (Amendment an .....

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ined in any judgment, decree or order of any court of law, tribunal or other authority. However, this amendment adversely impacts the Petitioners herein in that it seeks to validate the show-cause notices ( SCNs ) issued prior to 6th July 2011 by not only officers of the Customs but also officers of the Commissionerates of Customs (Preventive), Directorate General of Revenue Intelligence ( DRI ), Directorate General of Central Excise Intelligence and similar placed officers. 3. The subsidiary is .....

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ct, it does not do so. The further submission is that for the period prior to 6th July 2011 the decision of the Supreme Court in Sayed Ali (supra) would still apply and even in terms of Section 28 (11) of the Act the offices of the Commissionerates of Customs (Preventive), DRI, DGCEI would not have jurisdiction to continue proceedings in relation to the SCNs already issued or issue fresh SCNs for the period prior to 6th July 2011. 5. This is then the conspectus of the main issue in these batch o .....

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nctions by the Board or the Commissioner of Customs. 8. Section 4 of the Act talks of appointment of officers of customs. It states that the Central Board of Excise and Customs may appoint such persons as it thinks fit to be officers of customs . The concept of proper officer becomes relevant for the purpose of assessment of duty under Section 17, provisional assessment of duty under Section 18, the exercise of the power to issue SCN under Section 28 where there has been non-levy, short-levy or .....

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fficer has been assigned those functions by the CBEC or the Commissioner of Customs. Section 28 of the Act as it stood prior to the recasting of the entire Section 28 by the Validation Act, 2011, reads as under: 28. Notice for payment of duties, interest, etc. (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may,- (a) in the case of any import made by any i .....

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e any duty has been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words "one year" and "six months", the words "five years" were substituted. P .....

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yable thereon has not been paid, part paid or erroneously refunded is more than one crore rupees, no notice under this sub-section shall be served except with the prior approval of the Chief Commissioner of Customs. Explanation : Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or six months or five years, as the case may be. (2) The proper officer, after considering the representation, if an .....

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has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, where it is possible to do so, shall determine the amount of such duty or the interest, within a period of one year: and (2) in any other case, where it is possible to do so, shall determine the amount of duty which has not been levied or has been short-levied or erroneously refunded or the interest payable which has not been paid, part paid or erroneously refunded, within a period of six m .....

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ment in writing, who, on receipt of such information, shall not serve any notice under sub-section (1) in respect of the duty or the interest so paid: Provided that the proper officer may determine the amount of short-payment of duty or interest, if any, which in his opinion has not been paid by such person and, then, the proper officer shall proceed to recover such amount in the manner specified in this section, and the period of one year or six months as the case may be, referred to in sub-sec .....

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e or ought to have been paid before the date on which the Finance Bill 2001 receives the assent of the President. (3) For the purposes of sub-section (1), the expression "relevant date" means,- (a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of the goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof; (c) in a .....

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he Collector of Customs for Bombay, Thane and Kolaba Districts in the State of Maharashtra. The decision in Sayed Ali 11. At this stage, it is necessary to examine in some detail the decision of the Supreme Court in Sayed Ali (supra). The facts of the case were that Respondent No. 1 was a partner of Respondent No. 2 firm, M/s. Handloom Carpet, which was engaged in the business of carpet manufacture and export. The firm was charged with having misused the Export Passbook Scheme by selling goods c .....

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ed on 3rd February 1993 by the same Officer who issued the SCN, i.e., Assistant Collector of Customs (Preventive), confirming the demands raised in the SCN. Aggrieved by the above order, the Respondents preferred an appeal before the Collector of Customs (Appeals). By an order dated 14th December 1993 the Collector of Customs (Appeals) allowed the appeal of the Respondents by holding that since the subject matter involved a demand of duty beyond a period of six months, the SCN was required to be .....

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on 28 (1) of the Act by involving the extended period of limitation. Penalties under Sections 112 (a) and 112 (b) (i) and (ii) of the Act were also proposed. 14. In reply to the said SCN, the Respondents questioned the jurisdiction of the Collector of Customs (Preventive) on the ground that the jurisdiction thereof vested in the Commissioner by virtue of Notification No. 251/83 which was more specific and limited in nature. It was accordingly contended that the said notification will prevail ove .....

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mpetent to investigate and adjudicate the case. 15. The Collector of Customs (Preventive) confirmed the demand of duty in the sum of ₹ 5,07,274 under Section 28 (1) of the Act. The Collector also ordered confiscation of two consignments of dyes, sulphur blue and sulphur blue green. Aggrieved by the above order, the Respondents went in appeal before the Customs, Excise and Gold (Control) Appellate Tribunal ( CEGAT ). A preliminary objection was raised before the CEGAT by the Respondents reg .....

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e Court. The plea of the Department before the Supreme Court was that once the Commissioner (Preventive) had been appointed as Collector of Customs (Preventive), Bombay by virtue of Notifications Nos. 250/83 and 251/83, issued by the Central Government under Section 4 of the Act, the Commissioner (Preventive) became proper officer in terms of Section 2 (34) of the Act and was, therefore, competent to issue an SCN under Section 28 of the Act since the goods were cleared for home consumption in Bo .....

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ors) (2011) 3 SCC 580. 17. The Supreme Court, after analysing the relevant provisions of the Act including the definition of proper officer under Section 2 (34) of the Act, observed as under: It is clear from a mere look at the provision that only such officers of Customs who have been assigned specific functions would be proper officers in terms of Section 2 (34) of the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to d .....

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of Section 28 would render the provisions of Section 2 (34) of the Act otiose inasmuch as the test contemplated under Section 2 (34) of the Act is that of specific conferment of such functions. 21. Moreover, if the Revenue s contention that once territorial jurisdiction is conferred, the Collector of Customs (Preventive) becomes a proper officer in terms of Section 28 of the Act is accepted, it would lead to a situation of utter chaos and confusion, inasmuch as all officers of Customs, in a part .....

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tice under Section 28 of the Act. 18. The Supreme Court observed that nothing has been brought on record to show that the Collector of Customs (Preventive) who had issued SCN was assigned the functions under Section 28 of the Act as proper officer either by the Board or the Collector/Commissioner of Customs. It was accordingly observed as under: We are convinced that Notifications Nos. 250-Cus. And 251-Cus. both dated 27th August 1983, issued by the central government in exercise of the powers c .....

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ub-section (34) of Section 2 of the Act. The Supreme Court observed that Sections 4 and 5 merely authorise the Board to appoint officers of Customs and confer on them the powers and duties to be exercised/discharged by them, but for the purpose of Section 28 of the Act, an officer of Customs has to be designated as proper officer by assigning the function of levy and collection of duty, by the Board or the Commissioner of Customs. The argument is rejected accordingly. 20. The Supreme Court also .....

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act as proper officer for various purposes under the Act, it became necessary for the central government to clarify the legal position. CBEC Instruction 22. Immediately after the decision of the Supreme Court in Sayed Ali (supra) on 18th February 2011, instructions were issued on 15th April 2011 by the CBEC to all officers of the Customs Preventive and DRI inter alia as under: 2. In view of Hon ble Supreme Court order, while other alternative measures are being considered to address the matter, .....

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on of the earlier show cause notices and in the light of the Hon ble Supreme Court judgment in the matter. 3. As for the cases which would be hit by limitation if notices are issued afresh now, necessary legal options are being explored. 4. Difficulty faced, if any, may be brought to notice of the Board. Section 28 amended by Finance Act 2011 23. On 8th April 2011, the Finance Act, 2011 was notified in the Official Gazette. It proposed to make series of amendments to the Act one of which was rec .....

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f facts,- (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of,- (i) his own ascertainment .....

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the duty or interest so paid or any penalty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest. (3) Where the proper officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under th .....

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e years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. (5) Where any duty has not been levied or has been short-levied or the interest has not been charged or has been part-paid or the duty or interest has been erroneously refunded by reason of collus .....

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f the receipt of the notice and inform the proper officer of such payment in writing. (6) Where the importer or the exporter or the agent or the employee of the importer or the exporter, as the case may be, has paid duty with interest and penalty under sub-section (5), the proper officer shall determine the amount of duty or interest and on determination, if the proper officer is of the opinion- (i) that the duty with interest and penalty has been paid in full, then, the proceedings in respect o .....

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f the amount actually payable in the manner specified under that sub-section and the period of one year shall be computed from the date of receipt of information under sub-section (5). (7) In computing the period of one year referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), the period during which there was any stay by an order of a court or tribunal in respect of payment of such duty or interest shall be excluded. (8) The proper officer shall, after allo .....

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respect of cases falling under sub-section (4). (10) Where an order determining the duty is passed by the proper officer under this section, the person liable to pay the said duty shall pay the amount so determined along with the interest due on such amount whether or not the amount of interest is specified separately. Explanation 1 - For the purposes of this section, "relevant date" means,- (a) in a case where duty is not levied, or interest is not charged, the date on which the prop .....

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2011 receives the assent of the President, shall continue to be governed by the provisions of Section 28 as it stood immediately before the date on which such assent is received. 24. The Explanatory Memorandum accompanying the Finance Bill, 2011 stated that Section 28 is being substituted so as to make provisions more coherent and clear as also to harmonize the demand period in normal cases to one year. What is important as far as Section 28 is concerned is that the power of reopening the asses .....

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date has been elaborated in Explanation 1. This is more or less conforms to the erstwhile Section 28 (3) of the Act. What is new as far as the recasting of Section 28 is concerned, is that Explanation 2 begins with the expression For the removal of doubts . It categorically states that for any non-levy, short-levy or erroneous refund prior to the date on which the Finance Bill, 2011 receives assent of the President, it should continue to be governed by the provisions of Section 28 as it stood im .....

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of the Customs Act, 1962 (52 of 1962), the Central Board of Excise and Customs hereby assigns the functions of the proper officer to the following officers mentioned in column (2) of the Table below, for the purposes of Section 17 and 28 of the said Act, namely: Table Sl. No. Designation of the officers (1) (2) 1. Additional Director Generals, Additional Directors or Joint Directors, Deputy Directors or Assistant Directors in the Directorate General of Revenue Intelligence. 2. Commissioners of C .....

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l Excise. The Validation Act 2011 27. The above Notification did not clarify the status of SCNs already issued prior to 6th July 2011. On 2nd August 2011 the Customs (Amendment and Validation), Act, 2011 was introduced in Parliament proposing to add another sub-section 11 after sub-section 10 of Section 28 of the Act. 28. The Statement of Objects and Reasons ( SOR ) appended to the said Bill explained the rationale behind insertion of Section 28 (11), as under: The Customs Act, 1962 consolidates .....

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of duty. The Hon ble Supreme Court of India in Commissioner of Customs versus Sayed Ali and Anr. (Civil Appeal Nos. 4294-4295 of 2002) held that only a customs officer who has been specifically assigned the duties of assessment and re-assessment in the jurisdiction area is competent to issue a notice for the demand of duty as a proper officer. As such the Commissioner of Customs (Preventive) who has not been assigned the function of a proper officer for the purposes of assessment or re-assessmen .....

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the functions of assessment and re-assessment of customs duty may be construed as invalid. The result would be huge loss of revenue to the exchequer and disruption in the revenue already 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 .....

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posed 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. 29. Section 28 (11) of the Act reads as under: (11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all .....

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hority reveals the legislative intent to overcome the judgment of the Supreme Court in Sayed Ali (supra). The second aspect is that the legislature intended the amendment to be retrospective and introduced the words shall be deemed to have been and always had been the proper officers . The SOR also makes it clear that the purpose was to amend the Act retrospectively and to validate anything done or any action taken under the said Act at all material times irrespective of issuance of any specific .....

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proper officer and the amendment to Section 28 of the Act settled the issue of validity of SCNs issued by them. The only additional clarification was that the said officers would not exercise authority in terms of Section 28 (8) of the Act. It was clarified that in other words, there shall be no change in the present practice and officers of DRI and DGCEI shall not adjudicate the Show Cause Notices issued under Section 28 of the said Act. Petitions in this Court 32. Two things happened after the .....

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vil) No. 441 of 2013 (Mangali Impex Limited) the Court passed the following order on 28th January 2013: The main issue sought to be raised in this writ petition is that the show cause notice dated 31st October 2003 issued under Section 28 of the Customs Act, 1962 has been issued by the Assistant Commissioner of Customs (SIIB), Special Intelligence & Investigation Branch who, according to the Petitioner, was not the proper officer in terms of the said Act and in particular the provisions of S .....

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e to operate. In the present case, the show cause notice was issued way back in 2003, at which point of time sub-section (11) of Section 28 was not in the statute book. There is some confusion to when Explanation 2 was introduced in the statute book and as to whether Explanation 2 has at all been passed by Parliament or not. The learned counsel for the Respondents wishes to take instructions in this regard. Renotify on 4th February 2013. 33. On the next date of hearing, i.e., 4th February 2013, .....

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f Section 28 of the said Act. Prima facie, there appears to be an apparent conflict between Explanation 2 and sub-section (11) which was introduced subsequently. The conflict arises because sub-section (11) is a non-obstante provision, but is non-obstante in relation to any judgment, decree or order of any court of law, tribunal or other authority and not in relation to the other provisions of the Act which includes Explanation 2 of Section 28 which had come into force earlier. It is for this re .....

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ever, that order shall not be given effect to until further directions from this Court. 34. Similar interim orders permitting the proceedings to go on but that the adjudication shall not be given effect to, were passed in each of the writ petitions. 35. On behalf of the Petitioners, arguments have been addressed by Mr. V. Lakshmi Kumaran, learned counsel, Mr. C. Hari Shankar and Mr. Arshad Hidyatullah, learned Senior counsel, Mr. Rajesh Mahna and Mr. Naveen Malhotra, learned counsel. On behalf o .....

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mited v. State of Rajasthan (1996) 2 SCC 449 and State of Haryana v. Karnal Co-op Farmers Society Limited 1993 (2) SCC 363, it was submitted that Section 28 of the Act confers such powers of the proper officer to multiple sets of customs officers without any territorial or pecuniary jurisdictional limit and for which reason the utter chaos and confusion envisaged by the Supreme Court in Sayed Ali (supra) would still subsist. It was further submitted that the legislature, through its validating p .....

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ce Company v. CTO (1984) 55 SCT 292 (AP) and Kerala High Court in Sivaramakrishnan v. State of Kerala 1995 (1) ILR 92 (Ker). (iii) Section 28 (11) would be applicable only in respect of short-levy or non-levy or erroneous refund arising on or after 8th April 2011. It is submitted that the new Section 28 substitutes the previous Section 28 of the Act with effect from 8th April 2011. Therefore, Section 28 (11) would also be taken to have been inserted with effect from 8th April 2011. The newly ins .....

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e to be governed by the provisions of Section 28 as it stood immediately prior to 8th April 2011. (iv) Mere deeming of all the officers of the customs to be prior officers without validating the SCNs issued prior to 8th April 2011 would not validate such SCNs by merely the amending Section 28 of the Act. Relying on the decision of the Supreme Court in Satchidananda Misra v. State of Orissa 2004 8 SCC 599, it was submitted that the very purpose of a Validating Act is to remove the cause of ineffe .....

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Limited v. Coffee Board (1980) 3 SCC 358 and Shri Ishar Alloys Steels Limited v. Jayaswals Neco Limited (2001) 3 SCC 609, it was submitted that the use of the definite article the is very significant as opposed to an or any . Only those officers who have been assigned the functions of the proper officer for the purposes of Section 17 (Assessment of bill of entry) will be considered as the proper officer for Section 28 of the Act. (vi) Without prejudice to the above submissions, it was contended .....

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) ELT 167 (Bom.) upholding the constitutional validity of Section 28 (11) of the Act and accepting the plea of the Department that by virtue of insertion of Section 28 (11), the SCNs issued prior to 8th April 2011 by the DRI, the notices issued by officers of the DRI, the DGCEI etc., i.e., officers who may not have been expressly assigned the functions of proper officers under Section 2 (34) of the Act, stood validated. It was submitted that although the said decision is a subject matter of a Sp .....

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e the Explanation below sub-section 10 of Section 28 of the Act to the extent that the SCN was issued prior to 8th April 2011. As far as actions now taken, after the insertion of Section 28 (11) of the Act, since it is a deeming provision, it empowers the officers of the DRI, DGCEI etc. to issue SCNs even for the period prior to 8th April 2011 subject to the time limits under Section 28 (4) of the Act being adhered to. 39. It was submitted that in the normal course, the customs duty is only asse .....

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to their invalidation in the first place. A validation Act can be enacted to retrospectively negate the effect of the judgments and orders of competent courts provided the validating legislation removes the cause of invalidity or the basis that had led to those decisions. It was submitted that inadvertent defects in statutes should be permitted to be corrected by the legislature through the device of small repairs . There is no vested right in any of the Petitioners, as a result of the decision .....

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slation." 41. It is submitted by the Respondents that a combined reading of Explanation 2 to Section 28 of the Act and the retrospective amendment brought about by Validation Act, 2011 would reveal that all the past cases where the SCN had been issued under Section 28 of the Act by any officer appointed as officer of Customs, prior to 6th July 2011 stands validated. The plea of conflict between Explanation 2 to Section 28 and Section 28 (11) of the Act is untenable, unjustified and misconce .....

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CN to a Customs Officer under Section 4 of the Act. Analysis of Section 28 (11) of the Act 43. The first issue is to be considered whether Section 28 (11) cures the defects pointed out by the Supreme Court in Sayed Ali (supra). In examining this issue, the Court would like to examine whether the decision of the Division Bench of the Bombay High Court in Sunil Gupta (supra) is required to be followed by the Court. 44. A perusal of Explanation 2 to Section 28 of the Act reveals that it opens with .....

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Act which seeks to deal with the very same period, i.e., the period prior to the date on which the Finance Act, 2011 receives the assent of the President i.e., 8th April 2011. Although what is intended to be done by the legislature, as is evident from the SOR appended to the Validation Act, 2011, is to validate the notices issued prior to 8th April 2011, the opening words of sub-section (11) of Section 28 is a non-obstante clause only in a limited sphere. It makes sub-section (11) apply notwiths .....

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his Act, or any other law for the time being in force, duties of customs ... Section 28A opens with the words notwithstanding anything contained in this Act . As far as Section 28AA is concerned, it begins with a non-obstante clause that encompasses not only any judgment, decree, order, or direction but in any provision of this Act or the rules thereunder . It is therefore, conscious that the decision taken by the legislature was to overcome the defects pointed out in a judgment. 46. Section 28 .....

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d by the unamended Section 28 of the Act as it stood prior to 8th April 2011, notwithstanding enactment of Section 28 (11) of the Act. Considering that Explanation 2 opens the words For the removal of doubts the Court cannot presume a legislative intent to the contrary. 47. Although it was repeatedly stressed by learned counsel for the Respondents that Section 28 (11) and Explanation 2 to Section 28 can be harmonized and that for that purpose the SOR appended to the Validation Act, 2011 must be .....

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s this section appearing in Section 28 (11) can only mean Section 28 as newly enacted. However, it does not in any manner affect Explanation 2 to Section 28 of the Act as far as the period prior to 8th April 2011 is concerned. In other words, the newly enacted Section 28(11) would not empower the officers of the DRI and DGCEI to either proceed to adjudicate SCNs already issued by them for the period prior to 8th April 2011 or to issue SCNs for a period prior to 8th April 2011. The judgment of th .....

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or the area mentioned in column 1 of the Notification which referred to the different states in India or to the whole of India. On the basis of the above Notification and the subsequent Notification dated 6th July 2011, the Bombay High Court negatived the plea that the Central Government and the CBEC have not entrusted or assigned the functions of the proper officer to the Additional Director of DRI . It held that the Notification dated 6th July 2011 refers to Section 17 and 28 of the Act and th .....

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prior to 8th April 2011 and that Section 28 (11) is a valid exercise of legislative power. 50. In dealing with Explanation 2, the Bombay High Court observed: 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 . There was no attempt made at reconciling the contradictory positions emerging from Explanation 2 to Section 28 and Section 28(11) of the Ac .....

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subject matter namely non-levy, short levy or erroneous refund. According to him, for determining which officer is competent to undertake the exercise in such a situation, reference has to be made necessarily only to Section 28(11) which opens with a non-obstante clause. It talks of persons appointed as Customs Officers even prior to 6th July 2011. Therefore, even the issue of non-levy, short levy or erroneous refund which arose prior to 8th April 2011 would be governed by Section 28 of the Act .....

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by the CBEC or by the Commissioner of Customs. If all officers of the Customs appointed as such prior to 6th July 2011 are deemed to be proper officers , then the administrative chaos that is likely to result, as was pointed out in the Sayed Ali case, would persist. The powers conferred would be overbroad since it would be without any territorial or pecuniary jurisdictional limit. This type of a validation, therefore, does not remove the defect pointed out in the Sayed Ali case. 53. There are t .....

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power of assessment has to be in relation to a territorial or pecuniary jurisdictional limit. The scope of the Validation Act 54. In this context a brief discussion of what a validation legislation is expected to do is required to be examined. It is perfectly possible and valid for the legislature to remove the defect pointed out by the Court which examines and pronounces on the constitutional validity of a statute. In The Assistant Commissioner of Urban Land Tax v. The Buckingham and Carnatic .....

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an earlier version of the Act was held to be not unreasonable. 55. However, what is essential is that the defect pointed out must be totally removed. In Krishnamurthi and Co. v. State of Madras (1973) 1 SCC 75 it was explained as under: It is axiomatic that the Government needs revenue to carry on the administration and fulfil its obligation to the citizens. For that purpose it resorts to taxation. The total amount needed is apportioned under different heads. The fiscal enactments brought on the .....

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idating Act. The object of such an enactment is to remove and rectify the defect in phraseology or lacuna of other nature and also to validate the proceedings, including realisation of tax, which have taken place in pursuance of the infirmity. Such an amending and validating Act in the very nature of things has a retrospective operation. Its aim is to effectuate and carry out the object for which the earlier principal Act had been enacted. Such an amending and validating Act to make small repair .....

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rticular date in the past and thus to validate the actions taken in the past as if the provisions concerned were in existence from the earlier date, the Legislature makes the said intention clear by the specific language of the validating Act. It is open for the Legislature to change the very basis of the provisions retrospectively and to validate the actions on the changed basis. 57. In Bakhtawar Trust v. M.D. Narayan (2003) 5 SCC 298, the Court explained the device of enacting a validation sta .....

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mpetent courts declaring the invalidity. It is also well settled that a validating Act may even make ineffective judgments and orders of competent courts provided it, by retrospective legislation, removes the cause of invalidity or the basis that had led to those decisions. ... 25. ...[I]t is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would no more be possible for the Court to arrive at the same verdict. In other words, the .....

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7, emphasis was laid on harmonising two seemingly conflicting provisions in order to avoid any inconsistency or repugnancy either within a section or between two different sections of the same statute. This was a further development of the principles of harmonising the two conflicting provisions explained in Sultana Begum v. Prem Chand Jain AIR 1997 SC 1006 as under: "(1) It is the duty of the Courts to avoid a head on clash between two Sections of the Act and to construe the provisions whi .....

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ould be given to both. This is the essence of the rule of harmonious construction . (4) The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a dead letter or useless lumber is not harmonious construction. (5) To harmonise is not to destroy any statutory provision or to render it otiose . 60. In State of Tamil Nadu v. Thirumagal Mills Ltd. (1972) 1 SCC 176, it was explained as under: The principle which has been laid down clearly is that validation of .....

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retation of the law under which the tax was collected and by legislative that makes the new meaning binding upon the Courts. None of these methods has been adopted in the present case. See Prithvi Cotton Mills Ltd. v. Broach Borough Municipality . 61. Keeping the above principles in mind when Section 28 has been re-casted by Act 8 of 2011 with effect from 8th April 2011 read with Section 28(11) which was introduced by the Customs (Amendment and Validation) Act, 2011 with effect from 16th Septemb .....

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the Sayed Ali case, Section 28 (11) of the Act does not state that it would operate notwithstanding anything contained either in the Act or any other Act for the time being in force. In other words, the legislature has not made it explicit that Section 28(11) would prevail notwithstanding anything contained in Explanation 2 to Section 28 of the Act. (ii) On the contrary, Explanation 2 which, as it presently stands, appears after Section 28(11) of the Act as already stood enacted with effect fro .....

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y, short-levy or erroneous refund occurring prior to 8th April 2011 should be dealt with. (iv) Prior to 8th April 2011 and even subsequent thereto, only a proper officer who has been assigned specific functions by the CBEC or the Commissioner as amended by Section 2(34) of the Act could undertake the task of non-levy, short-levy or erroneous refund. Therefore, for any non-levy, short-levy or erroneous refund prior to 8th April 2011, an officer of the Customs who has not been specifically assigne .....

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n given retrospective power to deal with non-levy, short-levy or erroneous refund for any period subsequent to 8th April 2011, i.e., the date on which Section 28(11) read with Explanation 2 could be said to have come into force. Section 28 (11) gives untrammelled power 62. There is merit in the contention that Section 28(11) is overbroad in as much as it confers jurisdiction on a plurality of officers on the same subject matter which would result in chaos, harassment, contrary and conflicting de .....

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hra Pradesh. In other words, the powers are not restrictive to serve local areas in respect of which under Section 4 of the Andhra Pradesh General Sales Tax Act, 1957, they could exercise powers. It was in the above context the Andhra Pradesh High Court observed that If plurality of officers are invested with the powers of assessing the same dealer, it will result in great hardship and inconvenience to the dealers in travelling to the offices of different officers and producing accounts before d .....

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licity of officers of the same status exercising power over the same area can lead to chaos and confusion and conflicting orders. It may even lead to multiplicity of proceedings regarding the same subject matter causing hardship and inconvenience to dealers. Questions may also arise as to who should be the revisional or appellate authority in relation to a particular proceeding. Section 3(2) has therefore advisedly limited the area of operation of any particular officer to certain local limits, .....

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e territorial jurisdiction of an officer which is not limited to local limits but extends to the whole of the State of Andhra Pradesh was clearly ultra vires the powers conferred on Government under Section 4. Reliance was placed on the observations of Beaumont, C. J. speaking for the Bench in Dayaldas Kushiram v. Commissioner of Income Tax which was a case under Section 4 of the Income Tax Act, 1992. The Bench also held that the conferment of concurrent jurisdiction on several officers in respe .....

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on. However, there cannot be a presumption of validity by reference to such SOR. (See Gujarat University, Ahmedabad v. Krishna Rangnath Mudholkar AIR 1963 SC 703 para 20) Effect of Section 28 (11) 66. The mere fact that Section 28(11) has been given retrospective effect does not solve the essential problem pointed out by the Supreme Court in the Sayed Ali case, which is the absence of the assigning of functions to proper officers under Section 2(34) of the Act. The even more serious problem is t .....

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e earlier Section 28 of the Act. In particular, there is no validation of the SCNs issued prior to the amendment of Section 28 of the Act. As observed in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan (supra), a legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. The past actions of the officers of the DRI and DGCEI who are not designated as proper officer in issuing SCNs for the period prior to 8th April 2011 have not been validated. 6 .....

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er explained in Shri Ishar Alloys Steels Ltd. v. Jayaswals Neco Ltd. (supra), the article the always denotes a particular thing or person. 69. The Court also finds merit in the contention that if jurisdiction is exercised by one officer of the Customs or of the DRI or DGCEI, it should impliedly oust the jurisdiction of other officers over the same subject matter. The doctrine of comity of jurisdiction requires that for the proper administration of justice there should not be an overlapping of th .....

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the Customs, DRI, the DGCEI etc. to exercise powers in relation to non-levy, short-levy or erroneous refund for a period prior to 8th April 2011 if, in fact, there was no proper assigning of the functions of reassessment or assessment in favour of such officers who issued such SCNs since they were not proper officers for the purposes of Section 2(34) of the Act and further because Explanation 2 to Section 28 as presently enacted makes it explicit that such non-levy, short-levy or erroneous refun .....

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le to being declared unconstitutional. 70.3 As regards the period subsequent to 8th April 2011, it is evident that if the administrative chaos as envisaged by the Supreme Court in Sayed Ali (supra) should not come about, there cannot be any duplicating and/or overlapping of jurisdiction of the officers. It would have to be ensured through proper co-ordination and administrative instructions issued by the CBEC that once a SCN is issued specifying the adjudicating officer to whom it is answerable, .....

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Pvt. Ltd. 72. Writ Petition (C) No. 8196/2013 by Sony India Private Limited is against ten SCNs issued by the Additional Director General, DRI, Bangalore on 12th and 15th April 2013 in respect of alleged non-levy, short-levy or erroneous refund for period beginning with 1st April 2008 and bearing the following numbers: DRI F.No.S/IV/32/2011/NDLS, DRI F.No.S/IV/32/2011/Nhava Sheva, DRI F.No.S/IV/32/2011/ACC Mumbai, DRI F.No.S/IV/32/2011/ACC Chennai, DRI F.No.S/IV/32/2011/Chennai Sea, DRI F.No.S/I .....

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. Subsequently however a common adjudicating authority was appointed viz., the Commissionerate of Customs (Imports), New Delhi. 74. In light of the law explained hereinbefore, insofar as any of the above SCNs relate to the period prior to 8th April 2011 they are clearly without jurisdiction since the ADG, DRI could not have exercised such power for a period prior to 8th April 2011. Further in terms of Explanation 2 to Section 28 as has presently been enacted with effect from 8th April 2011, for .....

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e adjudication proceedings shall go on in accordance with law. 76. Writ Petition (C) No. 8196/2013 and the pending application, if any, are accordingly disposed of. Mangali Impex Ltd. 77. The prayer in W.P. (C) No. 441 of 2013 by Mangali Impex Ltd. is for quashing of the SCN dated 31st October 2003 issued under Section 28/124 of the Act. 78. The petition has a long history beginning with samples having been drawn from 27 consignments of Calcium Stearate that were exported by the Petitioner as we .....

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led by the Central Bureau of Investigation ( CBI ) was accepted by the concerned Court. 79. As far as the SCN issued to the Petitioner by the Assistant Commissioner of Customs, SIIB was concerned, a petition being Writ Petition (C) No. 4167/2011 was filed in this Court challenging it. One of the main grounds urged therein was that the officer who issued the SCN was not properly authorised to do so. The said writ petition was disposed of by recording statement of learned counsel for the Petitione .....

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in accordance with law. In view of the narration of Section 11 to Section 28 of the Act, the present writ petition to this extent is infructuous . It is pursuant to the above observation that the present writ petition was filed in which notice was issued on 28th January 2013. 81. The orders passed by the Court on 28th January 2013 and 4th February 2013 have already been adverted to. It was made clear by the Court that the adjudicating authority may pass an adjudication order but such order will .....

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(supra) case will clearly apply to the case at hand. 82. In view of the aforesaid discussion in the main portion of the judgment, the Department cannot seek to rely on Section 28(11) of the Act to validate the SCN issued by the Assistant Commissioner of Customs, SIIB to the Petitioner on 31st October 2003. As has already been held by the Court, Section 28 (11) of the Act cannot validate SCNs or proceedings pursuant thereto in relation to non-levy, short-levy or erroneous refund for a period pri .....

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erseas 84. The challenge in Writ Petition (C) No. 1185/2013 by M/s. Lakshman Overseas, M/s V-4 Manufacturing Co., M/s Everest Exports and Mr. Ashwani Aggarwal is to an impugned SCN dated 30th April 2010 issued to the Petitioner by the ADG, DRI, Delhi pursuant to a search conducted at the residential premises of Petitioner No.4 Mr. Ashwani Aggarwal on 8th September 2005. 85. In the petition there is also a challenge to a subsequent notice issued to Petitioner No. 4 on 12th February 2013 asking hi .....

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t the time when the SCN was issued i.e. 30th April 2010, the ADG, DRI was not assigned the function of assessment under Section 17 and reassessment under Section 28 of the Act and was, therefore, not a proper officer for the purposes of Section 2(34) of the Act. 88. For the reasons already explained, the recourse to Section 28(11) of the Act as introduced with effect from 8th July 2011 cannot be had to validate the impugned SCN particularly in view of Explanation 2 to Section 28 as it presently .....

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nsignments of woollen carpets sought to be exported by the Petitioner on 10th November 2010 at the ICD, Patparganj, New Delhi. The challenge is also to the Circular dated 29th September 2011 issued pursuant to the insertion of sub-section 11 to Section 28. 91. It is stated that the said SCN was initially adjudicated upon by the Commissioner of Customs (Preventive) who by an order dated 3rd October 2012 sustained the demand raised against the Petitioner. 92. The appeal filed by the Petitioner aga .....

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cting notice to be issued in the present petition, the Court directed that the adjudication order will not be given effect to. 95. In light of what has been held in the earlier part of the present judgment, it is clear that in relation to the events that took place prior to 8th April 2011 no SCN could have been issued to the Petitioner by the Commissioner of Customs (Preventive) who admittedly is not a proper officer in terms of the Section 2(34) of the Act. Section 28(11) of the Act cannot be r .....

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January 2004 issued by the ADG, DRI to the Petitioner alleging over invoicing and recovery of draw back under Rules 16 and 16-A of the Customs & Central Excise Duty Draw Back Rules, 1995 read with Sections 75(1), 76(1) (b) and 75-A(2) of the Act. 98. This was in relation to export of readymade garments made by the Petitioner to Russia in the period between June 1999 and June 2002. It is not in dispute that at the time impugned SCN was issued, the ADG, DRI who issued it, was not a proper off .....

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Delhi to BSNL as well as an order dated 23rd May 2013 passed by the Central Board of Excise and Customs (CBEC) under Section 4 of the Act assigning several cases including the case on hand to the Commissioner of Customs (Import & General) for the purposes of adjudication under Section 4 of the Act and consequent order dated 16th December 2013 passed by the Commissioner of Customs (Import & General). 101. The brief facts are that BSNL invited tenders for planning, engineering, supply, in .....

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ware required for the hardware thereby suppressing the true value of the hardware and evading the customs duty payable on the software relatable to hardware, a search was conducted in the premises of EIPL which led to issuance of the SCN dated 3rd April 2013. 103. Pursuant to the notice issued in the present petition, a counter affidavit was filed by the DRI. There is no denial of the fact that at the time when the SCN was issued to the Petitioner by the DRI there was no assignment of the functi .....

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he impugned SCN dated 3rd April 2013 and all proceedings consequent thereto including the impugned orders dated 23rd May 2013 and 16th December 2013. 106. Writ Petition (C) No. 225/2014 and the pending application, if any, are disposed of in the above terms. Sennheiser Electronics India Pvt. Ltd. 107. The SCN under challenge in Writ Petition (C) No. 863/2014 by Sennheiser Electronics India Pvt. Ltd. is dated 24th December 2011 and was issued by the ADG, DRI in relation to alleged short levy of c .....

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et Impex 110. The challenge in Writ Petition (C) No. 3803/2014 by M/s. Comet Impex is to an impugned SCN dated 31st October 2008 issued by the ADG, DRI, Delhi to the Petitioner in relation to reassessment of imported goods during the period prior to 8th April 2011. The challenge is also to the impugned Circular No. 44/2011-Cus dated 23rd September 2011 issued consequent upon the insertion of Section 28(11) of the Act. 111. Admittedly, the case pertains to a period prior to 8th April 2011. Furthe .....

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Gupta 114. The challenge in Writ Petition (C) No. 5262/2014 by Rajesh Gupta is to the SCN dated 14th March 2011 issued by the ADG, DRI in relation to alleged imports made through the ICD, Tughlakabad during the period prior thereto. 115. In light of the above discussion, with the ADG, DRI not being the proper officer under Section 2(34) of the Act at the time when the SCN was issued, Section 28(11) of the Act cannot be referred to for validating the acts and the SCN issued by the ADG, DRI. Sinc .....

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by Daikin Airconditioning India Pvt. Ltd. is to one consolidated SCN dated 29th May 2014 was issued to the Petitioner for alleged short levy during the period 27th May 2009 to July 2013. 119. There are three separate Commissionerates at Nhava Sheva, Chennai and Kolkata to which the Petitioner has been made answerable in terms of the said SCN. 120. As far as the period involved covers the period 27th May 2009 to 8th April 2011, it cannot be sustained in law since during the said period the ADG, D .....

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oyce Manufacturing Co. Ltd. is inter alia to the SCN dated 2nd April 2009 issued by the DRI and for declaring Section 28(11) of the Act to be constitutionally invalid. Reference is made to the decision of the Supreme Court in Sayed Ali (supra). 123. It is not in dispute that at the time the SCN was issued, the DG, DRI or any other officer of the DRI was not specifically assigned the task of reassessment and, therefore, was not a proper officer under Section 2(24) of the Act. Accordingly, the imp .....

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11 has been appended to as Annexure B to the SCN. The ADG, DRI who issued the SCN was admittedly not a proper officer for the purposes of Section 2(34) of the Act. 126. Consequently, the impugned SCN dated 2nd December 2013 and all proceedings consequent thereto to the extent they pertain to the period prior to 8th April 2011 are hereby quashed. The proceedings for the subsequent period may go on in accordance with law. 127. Writ Petition (C) No. 4841/2015 and the pending application, if any, ar .....

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rdance with law. 129. Writ Petition (C) No. 5191/2015 and the pending application, if any, are disposed of in the above terms. Hansraj Bhatia & Co. through its Proprietor Shri Sanjeev Bhatia 130. The challenge in Writ Petition (C) No. 9379/2015 by Hansraj Bhatia & Co. is to the SCN dated 12th March 2014 issued by the ADG, DRI in relation to imports made for the period 24th June 2009 to 8th April 2011. While 8 bills of entry pertain to ICD, Tughlakabad, 6 pertain to Mumbai Port and 2 pert .....

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bills of entry in relation to imports of Narrow Woven Fabrics from China during the period 8th November 2008 to 30th November 2010, i.e., a period prior to 8th April 2011. 134. For the reasons already discussed, the said SCN dated 7th November 2013 and all proceedings consequent thereto are hereby quashed. 135. Writ Petition (C) No. 11041/2015 and the pending application, if any, are disposed of in the above terms. Cortel India 136. The challenge in this Writ Petition (C) No. 11285/2015 by Cort .....

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the pending application, if any, are disposed of in the above terms. Bhagwati Components Manufacturing Co. through its Director Mr. Surjit Singh 139. The challenge in this Writ Petition (C) No. 11806/2015 by Bhagwati Components Manufacturing Co. is to an SCN dated 10th September 2004 issued by the ADG, DRI in relation to the alleged mis-declaration of value of export of Alloy Steel Forgings (Machined) from ICD, Tughlakabad and CFS, Patparganj by the Petitioner for the purpose of availing higher .....

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tition (C) No. 11853/2015 by Eastron Overseas Inc. is to a SCN bearing F. No. 23/17/2011-DZU(Eastron)/5951 (Show cause notice No. 50/2014) dated 20th November 2014 issued by the ADG, DRI under Section 124 of the Customs Act read with Section 9A of the Customs Tariff Act, 1975 in relation to import of Color Picture Tubes in the year 2010. 143. For the reasons already mentioned, the impugned SCN and all proceedings consequent thereto are unsustainable in law and hereby set aside. 144. Writ Petitio .....

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