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TMI Blog2018 (3) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, with effect from 16.9.2011. 2. The present writ petitions have been filed in this Court under Article 226 of the Constitution of India against the impugned show-cause notice Annexure-A, dated 6.1.2017 on the twin grounds of validity of provisions of the Act and also lack of jurisdiction of the respondent-Additional Director General to issue the said show-cause notice. 3. The learned counsel for the petitioner Mr.Raghuraman has submitted before the Court that the Hon'ble Supreme Court in the case of Commissioner of Customs Vs. Sayed Ali [2011 (265)E.L.T.17 (S.C.)] decided on 18.2.2011 had laid down that it is only the officers of customs, who are assigned the functions of assessment, working under the jurisdictional Collectorate within whose jurisdiction the bills of entry or baggage declarations has been filed and the consignments have been cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Act and therefore the authorities belonging to the Intelligence Wing, who are the authorities assigned the functions of preventing evasion of duty do not have the assessment of powers under the Customs Act. 4. He submitted that Section 28(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment of officers of DGCEI as Customs officers for whole of India.-In exercise of the powers conferred by sub-section (1) of section 4, read with sub-section (1) of section 5 of the Customs Act, 1962 (52 of 1962), and in supersession of the notification of the Government of India in the Ministry of Finance, Department of Revenue, No.27/2009-Customs (N.T.), dated the 17th March, 2009, published vide number G.S.R. 173(E), dated the 17th March, 2009, except as respects things done or omitted to be done before such supersession, the Central Board of Excise and Customs hereby appoints the following officers specified in column (2) of the Table below as the officers of Customs having jurisdiction over the area mentioned in column (4) and of the rank specified in the corresponding entry in column (3) of the said Table, namely:- Sl. No. Officer of Directorate General of Central Excise Intelligence Rank of Officer of Customs Area of Jurisdiction (1) (2) (3) (4) 1 Principal General Director Principal Chief Commissioner of Customs Whole India of 2 Principal Additional Director General Principal Commissioner of Customs 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court to the following judgments to support his contentions: 1) Raghunath International Ltd., Vs. Union of India -2012 (280) E.L.T.321 (All.) 2) Asia tobacco Co.Ltd. Vs. Union of India & anr -1988(33) E.L.T. 279 (Mad.) 3) Duncan Agro Industries Ltd. Vs. Union of India -1989(39) E.L.T. 211 (Del.) 10. I have heard the learned counsel appearing for the parties and given earnest consideration to their rival contentions. 11. In the considered opinion of this Court, the present writ petitions are misconceived and are liable to be dismissed. 12. As far as the validity of the provisions of Section 28(11) of the Act is concerned, this Court does not find any illegality or lack of legislative competence or ultra vires in the said provision. As per the well settled legislation practice of undoing the effect of the judgments of the Constitutional Courts by removing the defects pointed out by the Courts of law, the legislature came forward to frame laws in consonance with the legislative objects sought to be achieved. The provisions of Section 28(11) accordingly were inserted on 16.9.2011 soon after a decision of the Hon'ble Supreme Court in Sayed Ali's Case rendered on 18.2.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in any judgment, decree or order of any Court of law, tribunal or other authority, all persons appointed as officers of customs under sub-section (1) of section 4 before the 6th day of July, 2011, shall be deemed to have and always 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." 16. The said provisions have apparently been brought in to undo the decision rendered by the Apex Court in Sayed Ali's Case. 17. The peculiar facts and circumstances and under the unamended law in which the Hon'ble Supreme had rendered the judgment in Sayed Ali's Case can be culled out from paragraph-14 which is quoted below for ready reference: "14. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a customs officer who has been assigned the specific functions of assessment and re-assessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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