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TMI Blog2021 (7) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... s dated 26.09.2006, 17.07.2006 and 31.05.2006 respectively. 2.W.P.Nos.10277, 10279 & 10281 of 2011 are filed challenging the Notifications dated 04.05.2007, 04.05.2007 and 05.09.2006 issued by the first respondent, in exercise of the powers conferred by sub-Section (1) of Section 4 and sub-Section (1) of Section 5 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as "the Act"). 3.A writ against a show cause notice may be entertained, only if the show cause notice is issued by an incompetent authority having no jurisdiction or allegations of malafieds are raised. If allegations of malafieds are raised, then the authority against whom such an allegation is raised is to be impleaded as a party respondent in the writ proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; shall issue show cause notice, in the present case, the incompetent authority, having no jurisdiction, issued the show cause notices and the notifications conferring power are also in violation of the specific provisions under the Act that the proper officer shall issue notice. Thus, all the writ petitions are to be allowed. In support of the said grounds raised, the learned counsel for the petitioners, relied on the judgment of the Hon'ble Supreme Court of India, in the case of Commissioner of Customs vs. Sayed Ali reported in 2011 (265) E.L.T. 17 (SC). The Apex Court made an observation in paragraph 14, which reads as follows:- "14.From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. The learned counsel for the petitioner also referred to Section 28(1)(a) wherein also, the term used is 'proper officer'. Relying on the rulings of the Hon'ble Supreme Court, in the case of Sayed Ali (supra), the learned counsel for the petitioner is of an opinion that the proper officer is the language adopted in the Act and therefore, all show cause notices are to be issued by the proper officer and who is the proper officer is defined under the Act and the Hon'ble Supreme Court also confirmed that the proper officer is the officer, who is having jurisdiction over the person concerned. 8.The learned counsel for the petitioners relied on the subsequent and recent judgment of the Hon'ble Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details referred to by the petitioners are of no avail to them and in the present case, the first respondent issued specific notifications by invoking the powers under sub-Section (1) of Section 4 and sub-Section (1) of Section 5 of the Act, and such power shall be conferred to the officers and on conferment of such powers, the officer in favour of whom such power is concerned, became 'the proper officer'. Thus, the proper officer in the present case is the officer, who issued the show cause notices at Goa and certainly not the officer at Chennai. Once the provisions of the Act are invoked and the power is conferred on a particular officer, such officer became the proper officer for the purpose of initiation of action and thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai-20" 13.Section 4 of the Act contemplates 'appointment of officers of customs'. Section 4(1) states that the Board may appoint such persons as it thinks fit to be officers of customs. Section 5 provides 'powers of officers of customs'. Section 5(1) enumerates that subject to such conditions and limitation as the Board may impose, an officer of customs may exercise the powers and discharge the duties conferred and imposed on him under the Act. 14.Cogent reading of the provisions of the Act would reveal that the Board, at its discretion, may appoint such persons as it thinks fit to be officers of customs. Under Section 5, the officers of customs appointed by the Board under Section 4(1) of the Act may exercise the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the petitioner were not related to the conferment of powers by the Board under Section 4(1) and 5 of the Act. The Hon'ble Supreme Court interpreted the word 'proper officer' and as per the definition under Section 2(34) of the Act, 'proper officer' means the officer having jurisdiction over the concerned person. However, in the event of exercising the powers under Section 4(1), if the Board appoints any other officer as an officer of customs, then such an officer becomes the proper officer within the definition under Section 2(34) of the Act, who in turn is empowered to exercise the powers of officers of customs under Section 5 of the Act. 16.This being the constructive interpretation of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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