TMI Blog2019 (4) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... then be reinstated. Considering the criticality of competence to issue show cause notice, the ends of justice will be appropriately met if the impugned order is set aside and the matter remanded back to the adjudicating authority to be decided afresh after the question of jurisdiction of officers of Directorate of Revenue Intelligence to issue notice for finalisation of assessment is settled. - APPLICATION NO: C/MISC/1678/2012 IN APPEAL NO: C/516/2009 - A/85175/2019 - Dated:- 23-1-2019 - Shri C J Mathew, Member (Technical) And Dr Suvendu Kumar Pati, Member (Judicial) Ms Madhura Khandekar with Ms Lakshmi Menon, Advocates for appellant Ms PV Sekhar, Joint Commissioner (AR) for respondent ORDER Per: C J Mathew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by Additional Director General, Directorate of Revenue Intelligence for, inter alia, finalization of assessment under section 18 of Customs Act, 1962. The lack of competence of officers of Directorate of Revenue Intelligence to exercise powers statutorily conferred on proper officer , as defined in section 2(34) of Customs Act, 1962, was decided upon by the Hon ble Supreme Court in Commissioner of Customs v. Sayed Ali [(2011) 3 SCC 537] following which sub-section (11) was inserted in section 28 of Customs Act, 1962 to validate all show cause notices issued prior to 6th July 2011 by officers not designated as proper officers . 6. The constitutionality of this retrospective validation was challenged in different High Courts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30-7-2009, which is under challenge in the present writ petition, is no longer in force. The show cause notice has already culminated in a order of adjudication and the order of adjudication has also been confirmed by the Tribunal, the High Court and the Supreme Court. The doctrine of merger has come into play and the show cause notice is not available any more for the petitioner to challenge. 11. Heavily reliance is placed by Mr. P. Vikram, learned counsel for the petitioner on two things viz., (1) the judgment of the Delhi High Court in Mangali Impex Ltd., (supra); and (2) the judgment of a Division Bench of the Punjab Haryana High Court in Rajinder Arora and Others v. Union of India and Others [2016 (339) E.L.T. 370 (P H)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court. What cannot be achieved by the petitioner directly cannot be achieved by them indirectly. 14. The contention that all proceedings founded upon a show cause notice that was inherently lacking in jurisdiction, would be non est, null and void, is perhaps right as a simple statement of a proposition of law. But it is not without exceptions. If this theory of nullity and voidity is accepted, all proceedings initiated before 8-4-2011, which have already culminated in orders of adjudication and pursuant to which recoveries have been made, are also to be deemed as non est. Therefore, the Commissionerates of Excise throughout the country can today be flooded with applications for refund of the duty paid in pursuance of the orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
