TMI Blog2019 (11) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Article 309 rules. For both the above reasons, the recruitment rules for recruitment, promotion and selection in the said 2016 rules do not apply, to the selection under Sections 4 and 6 of the said Act. In any event, there is in my opinion no conflict between the said Act and the rules. 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 impugned judgment and order dated 11th July, 2018 is set aside - Appeal allowed. - MAT 823 of 2018, WP 3336(W) of 2018, CAN 6689 of 2018, MAT 824 of 2018 WP 3337(W) of 2018 CAN 9951 of 2018, MAT 825 of 2018 WP 3338(W) of 2018 CAN 9953 of 2018, MAT 826 of 2018 WP 3339(W) of 2018, CAN 9954 of 2018 And MAT 827 of 2018 - - - Dated:- 5-11-2019 - Justice I. P. Mukerji And Justice Md. Nizamuddin, JJ. WP 3340(W) of 2018, MAT 828 of 2018, WP 3341(W) of 2018, MAT 829 of 2018, WP 3342(W) of 2018, CAN 9958 of 2018, MAT 830 of 2018, WP 3342(W) of 2018, CAN 9960 of 2018, MAT 831 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The value of the illegally imported items was ₹ 2,97,08,400/-. In the bill of entry which came into the hands of the appellants later it was found that the total assessable value was declared to be only ₹ 7,45,305/-. Statements under Section 108 of the Customs Act, 1962 (the said Act) were obtained from the employees or agents of the customs brokers and the conniving customs officials. It came to light that this syndicate was large, operating from Kolkata and Delhi. There was a network of smugglers aided by customs brokers and select customs officials headed by Navneet Kumar. The smuggling activity included not only undervaluation or mis-declaration of goods but also creation and fabrication of documents, creation, production and acceptance of fake valuation documents, constant operation of this network through diverse mobile phones and so on. By the impugned show-cause notice dated 2nd December, 2017 the persons named therein were asked to show-cause why:- a) the said seized goods imported under Airway Bill No.16083772415 dated 2.6.2017 and Bill of Entry No.9962773 dated 5.6.2017 in respect of M/s Jash- Insha Expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the writ applications except the one questioning the jurisdiction of the Additional Director General of the Directorate of Revenue Intelligence, (hereinafter referred to as the Additional Director General) to issue a show-cause notice under Section 124 of the said Act, were abandoned. This will appear from the following passage in the said judgment: 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. An extensive common judgment in the writ applications was delivered on 10th July, 2018. I narrate some of the findings: The last of the notifications relied upon at the behest of the respondents is dated May 2, 2012. It is a notification bearing No.40/2012 and is issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue such a notice. On appeal this point was almost abandoned and a new point was raised by Mr. Shaktinath Mukherjee, learned senior advocate for the respondent writ petitioners, to which I shall refer immediately. Although this point was not raised before the court below, we entertained this argument on appeal, instead of remanding the matter back to the trial court for these reasons. We accepted the submission that this point was substantially a pure question of law. To decide on this point some rules and notifications had to be gone into which the appeal court could easily do. If that was done then the dispute between the parties would be finally resolved. Mr. Kapur, learned senior counsel for the appellants was very firm in his submission that because of the impugned judgment and order the entire process of issuance and adjudication of show-cause notices in customs and allied matters was thrown into jeopardy. He placed the said Act, the notifications under Section 4 thereof, rules under Article 309 of the Constitution of India and the various departmental orders referred to below. There was not a tinge of invalidity in the show cause notice or the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( a) Principal Chief Commissioner of Customs; ( b) Chief Commissioners of Customs; ( c) Principal Commissioners of Customs; ( d) Commissioners of Customs; ( e) Commissioners of Customs (Appeals); ( f) Joint Commissioners of Customs; ( g) Deputy Commissioners of Customs; ( h) Assistant Commissioners of Customs; ( i) such other class of officers of customs as may be appointed for the purposes of this Act. On 7th July, 1997, in exercise of the powers conferred on it by sub-section 1 of Section 4 of the said Act, the Central Government inter alia, appointed all officers of the Directorate of Revenue Intelligence as officers of Customs. By a subsequent notification dated 7th March, 2002 inter alia the Additional Director General of Revenue Intelligence was appointed as the Principal Commissioner of Customs or Commissioner of Customs. On 22nd April, 2016 the Department of Revenue, Ministry of Finance, Government of India exercising its powers under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 Customs not below the rank of an Assistant Commissioner of Customs to issue a show-cause notice. There is no reference to a proper officer. In those circumstances, the argument of the respondent writ petitioners or the finding of the learned judge that the impugned show-cause notice had not been issued by a proper officer has no basis whatsoever and is rejected outright. Examining Article 309, until a proper legislation is made, the President of India or the Governor or their nominees may make rules for the recruitment and conditions of service for the services and posts over which they have jurisdiction. The said Act was enacted in 1962, much prior to these rules. Section 4 provided that the Board may appoint such persons as it thinks fit as officers of Customs. The reference to such persons is very significant. This section gave wide powers to the Board to appoint any person as an officer in any class specified in Section 3 quoted above. This simp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner specified in Schedule I. This schedule only refers to the Principal and Commissioner of customs. The method of recruitment is by promotion on selection as provided in rule 5 read with Schedule III columns 3 and 4. First of all, this rule provided for filling up the vacancies in the Indian Revenue Service. Hence, if there was any vacancy in the post of Commissioner of Customs and Central Excise (Grade IV), Senior Administration Grade, it was to be filled up through a selection process by promotion. The Additional Director General was not appointed against any vacancy, in my judgment. Section 4 of the said Act provides for appointment of any person to discharge the functions of, inter alia, the Commissioner of Customs. The breadth of this section is very wide. Considering the exigency, the government has the power to appoint, inter alia, any person as the Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 suggest that instead of the allegations, findings of fact were made towards the persons charged. The difference between an allegation and a statement of fact or finding is that the former is subject to proof whereas the latter is a proved or true allegation, according to the maker. One has to scan the whole show-cause notice to ascertain its nature and purport, whether it makes allegations or records findings. It is true that from paragraph numbers 63 to 75 of the show-cause notice the statements made therein are described as discussion and findings. But paragraph No. 76 thereof clearly suggests that although the said statements were described as discussion and findings, they were mere allegations because the persons charged were called upon to show-cause why the seized goods should not be confis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 , A.K. Bhatnagar Ors. Vs. Union of India reported in (1991) 1 SCC 544 , Municipal Corporation, Jabalpur Vs. Om Prakash Dubey reported in (2007) 1 SCC 373 and State of Orissa and Ors. Vs. Prasana Kumar Sahoo reported in (2007) 15 SCC 129 . State of M.P. and Ors. Vs. Lalit Kumar Verma reported in (2007) 1 SCC 575 were about appointments which were irregular for being non-compliant with the relevant rules framed under Article 309. State of U.P Ors. Vs. Desh Raj reported in (2007) 1 SCC 257 was a case dealing with the same principle and relating to regularisation of service. In my judgment, although Section 4 of the said Act and the Article 309 rules operate in different fields, in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 defending the writ applications also did not produce them before the learned single judge. Quite naturally, the learned single judge acting on documents which were far from sufficient and misleading made the impugned judgment and order allowing the writ applications. All the appeals are allowed. The impugned judgment and order dated 10th July, 2018 is set aside. All interim orders are vacated. All interim orders are vacated. All the connected applications are disposed of by this order. All the writ applications are dismissed. MAT Serial No. 14: On the identical facts and for the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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