TMI Blog2018 (7) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... r any officer of the Customs on any officer of the Central or State Government or a local authority, either conditionally or unconditionally. Section 152 of the Act of 1962 allows the Central Government to delegate the powers exercisable by the Board, Commissioner of Customs, Joint or Assistant Commissioner of Customs on the persons specified therein. Section 2(34) of the Act of 1962 mandates that, an officer of the Customs must be duly authorised, either by the Board or the Commissioner of Customs to discharge a function under the Act of 1962. In absence of such authorization by the Board or the Commissioner of Customs under the Act of 1962, no officer can discharge any function under the Act of 1962 which he is not authorised to discharge. An appointee under Section 4 of the Act of 1962 requires an authorization under Section 2(34) to be considered as proper officer to discharge the functions of a Customs Officer. An employee other than of Customs, entrusted with the discharge of functions under the Act of 1962 would also require an authorization under Section 2(34) to be considered as a proper officer entitled to discharge functions under the Act of 1962 - The notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Additional Director General, Directorate of Revenue Intelligence, Kolkata invoking Section 124 of the Customs Act, 1962 on the ground of lack of jurisdiction to do so. Learned Senior Advocate appearing for the petitioner submits that, an Additional Director General of the Directorate of Revenue Intelligence has no jurisdiction to invoke the provisions of Section 124 of the Customs Act, 1962. He submits that, a notice to show cause can be issued under Section 124 of the Act of 1962 by the persons named in Section 122 of the Act of 1962, and at best, by the delegatees, if so delegated with such powers, under Section 152 of the Act of 1962. He contends that, an Additional Director General of Directorate of Revenue Intelligence is not a person contemplated under the Act of 1962 to proceed under the provisions of Section 124 of the Act of 1962. He refers to Section 2 of the Customs Act and in particular to Sub-section (1) and Sub-section (34) thereof. He submits that, the adjudicating authority is defined in Section 2(1) of the Act of 1962. Proper officer is defined in Section 2(34) of the Act of 1962. The appointment of officers of Customs is provided in Section 4 of the Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised by the post holder. According to him, since the impugned show-cause notice suffers from the vice of lack of jurisdiction, the same should be quashed as against the petitioner. Learned Advocate appearing for the Directorate of Revenue Intelligence submits that, all officers of the Directorate of Revenue Intelligence are treated as officers of Customs. In support of such contention, he relies upon four notifications issued by the Central Government. Relying upon the notification No. 31/97-Cus. (N.T.) dated July 7, 1997 learned Advocate appearing for the Directorate of Revenue Intelligence submits that, the petitioner falls within the ambit of a person who can issue a notice to show cause under the provisions of the Customs Act, 1962. He refers to Section 112 of the Act of 1962 and submits that, penalty can be imposed on any person. In the facts of the present case, the petitioner has been asked to show-cause as to why penalty should not be imposed against him. He refers to Section 122 of the Act of 1962 and submits that, such a section contemplates that, a proceeding can be initiated against any person who is liable to pay a penalty. Section 124 of the Act of 1962 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court Cases page 520 (Union of India Ors. v. Jain Sudh Vanaspati Ltd. Anr.) and submits that, the noticee in a proceeding under Section 124 has an opportunity to make a written representation, and to be heard before passing of the final order. Therefore, there is no prejudice caused to such noticee. Consequently, he submits that, the writ petition should be dismissed. Although the parties wanted to canvass other points, the contentions of the parties were limited to the question of lack of jurisdiction of the Additional Director of Directorate of Revenue Intelligence to invoke the provisions of Section 124 of the Customs Act, 1962. The issue, therefore, that falls for consideration in the writ petitions is whether the Additional Director of Directorate of Revenue Intelligence has the jurisdiction to invoke Section 124 of the Act of 1962 or not. It appears from the impugned show-cause notice dated December 2, 2017 that, the Directorate of Revenue Intelligence, Kolkata Zonal Unit, Kolkata, received specific information with regard to merit of different contraband and high value items. An investigation was carried out by the Directorate of Revenue Intelligence with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms to appoint officers of customs below the rank of Assistant Commissioner of Customs. 5. Powers of officers of customs.- (1) Subject to such conditions and limitations as the Board may impose, an officer of customs may exercise the powers and discharge the duties conferred or imposed on him under this Act. (2) An officer of customs may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of customs who is subordinate to him. (3) Notwithstanding anything contained in this section, a Commissioner (Appeals) shall not exercise the powers and discharge the duties conferred or imposed on an officer of customs other than those specified in Chapter XV and section 108. 6. Entrustment of functions of Board and customs officers on certain other officers.- The Central Government may, by notification in the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under this Act. 112. Penalty for improper importation of goods, etc. Any person,- (a) who, in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation does not exceed ten thousand rupees, by a gazetted officer of customs lower in rank than an Assistant Commissioner of Customs or Deputy Commissioner of Customs. 124. Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a) is given a notice in 1[writing with the prior approval of the officer of customs not below the rank of a Deputy Commissioner of Customs, informing] him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral. 152. Delegation of powers.- The Central Government may, by notification in the Official Gazette, direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time being posted to a Customs port, Customs airport, Land-Customs station, Coastal Port, Customs preventive post, Customs Intelligence post or a Customs warehouse. 3. Superintendents, and Inspectors of Central Excise Department in any place in India. 4. All Officers of the Directorate of Revenue Intelligence. 5. All Officers of the Narcotics Control Bureau. 6. All Assistant Directors of the Central Economic Intelligence Bureau. [Notification No. 31/97-Cus. (N.T.), dated 7-7-1997 as amended by Notification No. 18/2017-Cus. (N.T.), dated 3-3-2017.] Government of India Ministry of Finance (Department of Revenue) Notification No.17/2002- Customs (N.T.) the 7th March, 2002. New Delhi, dated Appointment of D.R.I. officials as Customs Officers In exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962 (52 of 1962) and in suppression of notification of the Government of India in the Ministry of finance (Department of Revenue) No. 19/90-Customs (N.T.), dated the 26th April, 1990, the Central Government appoints the officers mentioned in Column (2) of the Table below to be the [Principal Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mally performed by Commissioners Deputy Commissioners or Assistant Commissioners of Customs in their jurisdiction, as the case may be. Board cannot doubt subject these powers/functions to certain restrictions/limitations as may be imposed, as provided under section 5(1) of the Customs Act. 3. Directorate of Revenue Intelligence Officer are, therefore, to undertake investigations of cases detected by them and to issue the Show Cause Notices on completion of investigations. In line with the instructions issued (vide F.No. 208/23/97-CX-8, dated 20.1.98) in respect of Officers or Directorate General Anti Evasion, Board has decided that in impact of cases investigated by the Directorate General of Revenue Intelligence, the officers of said Directorate will be competent to and may issue show case notices in cases investigated by them though these will continue to be adjudicated by the concerned jurisdictional Commissioners, Additional Commissioners, Deputy Commissioners or Assistant Commissioners of Customs, as the case may be. 4. The Board has also decided that these instructions may kindly be brought to the notice of all departmental officers by issuing suitable standing or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Section 28B; 5. Superintendent of Customs and Central Excise or Appraiser (i) Section 13; (ii) Section 14; (iii) Sub-sections (2), (3), (4) and (6) of section 17; (iv) Section 19; (v) Section 40; (vi) Section 41; (vii) Clause (b) of subsection (2) of section 45; (viii) Sub-sections (1) and (4) of section 46; (ix) Section 47; (x) Section 50; (xi) Section 51; (xii) Section 54; (xiii) Section 62; (xiv) Clause (a) to (e) of section 64; (xv) Section 68; (xvi) Section 69; (xvii) Section 79; (xviii) Section 83; (xix) Section 86; (xx) Section 92; and (xxi) Section 93. 6. Intelligence Officer in the Directorate General of Revenue Intelligence and Directorate General of Central Excise Intelligence. (i) Section 37; (ii) Section 100 (iii) Section 103; (iv) Section 106; (v) Section 106A; (vi) Sub-sections (1) and (3) of section 110; (viii) Section 144; and (ix) Section 145. 7. Inspector of Customs and Central or Preventive Officer or Examining Officer. Excise (i) Subsection (1) of section 31; (ii) Section 34 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telligence to undertake investigation on cases detected by them, and to issue show-cause notices on completion of the investigations. The fourth notification bearing No. 40/2012 Cus. (N.T.) dated May 2, 2012 delineates the functions under the various sections of the Customs Act, 1962 that may be discharged by the officers of the Directorate of Revenue Intelligence as specified therein. Section 2(34) of the Act of 1962 defines a proper officer. A proper officer, in relation to any function to be performed under the Act of 1962 means the officer of Customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs. Section 4 of the Act of 1962 empowers the Board to appoint persons as officers of Customs. It allows the Board to authorize a Principle Chief Commissioner or Chief Commissioner of Customs or a Joint or Assistant or Deputy Commissioner of Customs to appoint officers of Customs below the rank of Assistant Commissioner of Customs. Section 6 of the Act of 1962 allows the Central Government to entrust the functions of the Board or any officer of the Customs on any officer of the Central or State Government or a local au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the Act of 1962. In absence of such authorization by the Board or the Commissioner of Customs under the Act of 1962, no officer can discharge any function under the Act of 1962 which he is not authorised to discharge. An appointee under Section 4 of the Act of 1962 requires an authorization under Section 2(34) to be considered as proper officer to discharge the functions of a Customs Officer. An employee other than of Customs, entrusted with the discharge of functions under the Act of 1962 would also require an authorization under Section 2(34) to be considered as a proper officer entitled to discharge functions under the Act of 1962. The notification No. 31/97- Customs (N.T.) dated July 7, 1997 and notification No. 17/2002, Customs (N.T.) dated March 7, 2002 are exercise of powers under Section 4 of the Act of 1962. It is not an exercise of power under Section 2(34) of the Act of 1962. Therefore, the personnel of Directorate of Revenue Intelligence named in such notifications have not been authorised to discharge any functions under the Act of 1962 by a conferment of authorization by the Board or the Commissioner of Customs exercising powers under Section 2(34) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can have simultaneously hold two liens against two posts in two different cadres. T.R. Pandey (supra) has held that, if the order of the punishing authority is without jurisdiction, the same cannot be ratified in appeal. The initial order being bad, the same cannot be cured on appeal. Abhishek Mundhra (supra) did not consider the notification issued under Section 2(34) of the Act of 1962 dated May 2, 2012. It concerns discharge of functions of an officer of Directorate of Revenue Intelligence under Section 28 of the Act of 1962. In such context it holds that, an officer of Directorate of Revenue Intelligence is entitled to discharge functions under Section 28 of the Act of 1962. With respect, all officer of Directorate of Revenue Intelligence will not have powers under Section 28 but those officers who are empowered by the Customs Notification No. 40/2012-Customs (N.T.) dated May 2, 2012. Swati Menthol and Allied Chemicals Ltd. (supra) has held that, officers of Directorate of Revenue Intelligence have powers for the purpose of Sections 17 and 28 of the Act of 1962. Again, with respect, such a view may not be correct in view of the notification dated May 2, 2012. Vikash Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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