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TMI Blog2019 (11) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Soumya Ray, Mr. Anubrata Roy And Mr. Prasun Chakraborty, Adv. For The Tax Authority : Mr. Amitabrata Roy And Mr. Bhaskar Prosad Banerjee, Adv. For The Union of India : Mr. Kaushik Chanda And Mr. Apurba Ghosh Judgment I. P. MUKERJI, J. The Directorate of Revenue Intelligence (hereinafter referred to as "the appellants" which reference include the appellant authorities) acted on reliable information received by it, to the effect that illegal importation of merchandise was being made from Dubai and Hong Kong to Kolkata through its airport. They included items like cigarettes, pen drives, memory cards, RAM, watches, cameras, protein supplements, steroids, hormone supplements, footwear, mobile accessories, mobile parts and so on. They were brought into India by a syndicate of dishonest persons operating all over the country. On 5th June, 2017 the appellants made a raid and identified consignments which were described as "courier" and "general import consignments". Out of them three "courier consignments" and sixteen "general import consignments" were examined at the air cargo complex, Netaji Subhas Chandra Bose International Airport between 5th June, 2017 and 1st August, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... want inspection of any document. Nor did they express a desire to be heard in the adjudication. Hence they did not evince any intention of participating in the adjudication proceedings. They straightaway filed the instant writ applications in this court. They attacked the show-cause notice. Their grounds were many. The salient ones are stated below:- a) The officer who issued the show-cause notice, had no authority to issue it. He was not a proper officer under Section 2(34) of the said Act. The show cause notice was invalid. b) Chapter 14 of the said Act relates to confiscation, conveyance and imposition of penalty in relation to illegal importation of goods and evasion of customs duty. The charged customs officials were not involved in these activities. c) The aforesaid chapter deals with the levy of customs duty, its non-payment and the liability to pay together with interest and penalty. The charged customs officials did not have this obligation. d) The show-cause notice did not mention who was the owner of the goods and in whose possession they were which were conditions precedent to issuing a show-cause notice under Section 124 of the said Act. e) The show-caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also require an authorization under Section 2(34) to be considered as a proper officer entitled to discharge functions under 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 of 1962.......................An authorization under Section 2(34) of the Act of 1962 is sine quo non for any officer of Customs or any officer entrusted under Section 6 of the Act of 1962........................Additional Director of Directorate of Revenue Intelligence is not entitled to invoke Section 124 of the Customs Act, 1962. The impugned showcause notices are quashed as being without jurisdiction." The Director General, Directorate of Revenue Intelligence and the Additional Director General are up in appeal against this common judgment and order. One appeal has been preferred in each writ application. Common arguments were made by both learned counsel, in the appeals. I propose to dispose of all the appeals by this common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act." Section 4 of the said Act is entitled "Appointment of officers of customs". It provides that the Board (Central Board of Indirect Taxes and Customs) may appoint such persons as it thinks fit to be officers of customs. Section 5 lays down that an officer of Customs may exercise the powers and discharge the duties conferred or imposed on him under this Act. Section 3 specifies the classes of customs officers as follows: 3. Classes of offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty on any person shall be made without a notice in writing with the prior approval of an officer of customs not below the rank of an Assistant Commissioner of Customs. The question to be answered in this appeal is whether the Additional Director General, the Zonal unit, Kolkata of the Directorate of Revenue Intelligence had the authority and the power to issue the show-cause notice dated 2nd December, 2017. At the outset I observe that the argument made that the show-cause notice had to be issued by a proper officer is incorrect. Section 2(34) of the said Act enacts that a proper officer is one who is assigned functions to be performed by that category of officer, by the Board or the Principal Commissioner of Customs or Commissioner of Customs. On 2nd May, 2012, the Board designated some officers to be proper officers. While designating such officers the function that each of such officers had to perform under a specified section of the said Act was provided. Each of these sections referred to a proper officer to discharge the functions specified in that section. Section 124 is not one of those sections. In Section 124 of the said Act the power has been given to an officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Columns 3 and 4 of Schedule III had to be followed. The said officer had to be recruited as a Customs officer following that procedure by recruitment or promotion and thereafter the appointment under Section 4 could be made. Learned Counsel argued that the Additional Director General had to be first appointed as Commissioner of Customs by promotion on the basis of selection. This procedure was not followed. He could not have straightaway been appointed to the rank of Commissioner. Such post could only be assumed by promotion on selection under the said rules under Article 309 of the Constitution. The appointment of the Additional Director General as an officer of the customs was invalid, it was said. By reason of such invalidity he had no authority to issue the show cause notice. It was a nullity. No proceeding could have been initiated by him thereunder. It was a novel and ingenious argument. I am unable to accept any part of it. The rules dated 22nd April, 2016 constitute norms for recruitment to various Group 'A' posts in the Indian Revenue Service (Customs and Central Excise Group - A). Rule 5 provides for filling up of the vacancies in any of the grades above Deputy Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Mukherjee, learned counsel, he submitted that the appellant had the obligation to show that the notifications were gazetted. When the gazette notification was shown then the submission was that proper circulation of the gazette had to be established. All the above submissions are preposterous. If those submissions were to be entertained then every person accused whether by the police or by the revenue authority in civil or criminal proceedings would turn around and question the person issuing the charge-sheet or notice, of his authority to do so and threaten him by asking him to produce detailed evidence of his authority. This would throw into disarray the administrative machinery of the government and create untold anarchy in our system. There is a well established presumption that a government or an officer exercising statutory authority is acting regularly. The onus is on the person challenging his authority to establish it. The respondent writ petitioners have miserably failed to even make out a semblance of a case. The next point taken by Mr. Mukherjee was that the show-cause notice showed pre-disposition of mind, in the sense that it was worded in such a way so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vacancies for the panel years 2014-15, 2015-16 and 2016-17" on provisional and ad hoc basis initially for a period of one year with effect from the date of assumption of charge of the post or until further order whichever was earlier. Therefore, on a combined reading of the said section and the said rules and notifications any Additional Director General as an Indian Revenue Service (Customs and Excise) Officer promoted to the "grade" of Commissioner of Customs, temporarily would also discharge the powers and functions of the latter. It also added that he was being posted as Director General of Revenue Intelligence, Kolkata. Hence, the above submission of learned counsel is wholly without any basis and is rejected outright. I will now deal with the cases cited by Mr. Mukherjee. Mr. Kapur did not cite any authority. Punjab State Warehousing Corporation, Chandigarh vs. Manmohan Singh & Anr. reported in (2007) 9 SCC 337 states the general principle that any appointment dehors the statute or the rules under Article 309 of the Constitution would be a nullity. The same principle was reiterated in Bhupendra Nath Hazarika & Anr. Vs. State of Assam & Ors. reported in AIR 2013 SC 234, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exact legal language in which the show-cause should be issued. I do not think I am required to deal with the unreported decision in civil rules No. 2745(W) of 1973 (Santi Ranjan Ray vs. State of West Bengal) decided on 24th December, 1973, as it dealt with the validity of transfer orders in a service matter. What is most condemnable is that the respondent writ petitioners made gross suppression of facts and materials before the learned single judge. I am amazed that they did not apprise the court below, through their learned counsel of the diverse rules and notifications discussed above, by which the Directorate of Revenue Intelligence Officers were appointed as customs officers under Section 4 of the said Act and that before being so appointed, the selection procedure specified in the said rules under Article 309 of the Constitution of India was also scrupulously observed. Furthermore, these appointments were duly published in the official gazette. I have every reason to believe that the respondent writ petitioners were fully aware of these rules and notifications and deliberately did not cause the court to be apprised of them. I am also very sad to note that the revenue d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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