TMI Blog2021 (9) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... 'proper officer' ruled by the Hon'ble Supreme Court in the case of COMMISSIONER OF CUSTOMS VERSUS SAYED ALI [ 2011 (2) TMI 5 - SUPREME COURT] was followed and affirmed - The Hon'ble Supreme Court, by referring to the decision in the case of Syed Ali held that the 'proper officer' is the officer having jurisdiction over the person concerned and therefore, the law regarding the interpretation 'Proper Officer' is settled by the Hon'ble Supreme Court. The petitioners are granted liberty to approach the appellate authority and file an appeal by following the procedures as contemplated and by complying with the conditions to prefer the appeal, within a period of 60 days from the date of receipt of a copy of this order, and in the event of filing of appeal by the writ petitioners within a period of 60 days, such appeal is directed to be entertained without reference to the period of limitation, and the matter has to be adjudicated on merits and in accordance with law and by affording opportunity to the parties concerned, and the appeal has to be disposed of, as expeditiously as possible. Petition disposed off. - W.P.Nos.39695, 39696, 354 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions on behalf of the petitioners contended that, some of the matters are pending before the Hon'ble Division Bench on the same issue. The High Court of Delhi in the case of Mangali Impex Limited Vs. Union of India reported in 2016 (335) E.L.T. 605 (Delhi), quashed the show cause notice on the basis of the ground raised that an improper officer issued the show cause notices. The relevant provisions of the Customs Act states the proper officer must issue the notice. The Delhi High Court allowed the writ petitions filed by the assessees. The Customs Department filed an appeal before the Hon'ble Supreme Court of India and admittedly, the judgment of the Delhi High Court is stayed by the Hon'ble Apex Court of India and the matter is pending. 6. This Court is of the considered opinion that the judgment of the Delhi High Court rendered in favour of the assessees is stayed by the Hon'ble Supreme Court, thus, there is no impediment for this Court to decide the issues. The Courts are always expected to dispose of the matters on merits and based on the facts and circumstances placed by the respective parties. Application of law with reference to the principles are to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words 'proper officer' ruled by the Hon'ble Supreme Court in the case of Commissioner of Customs Vs. Syed Ali reported in 2011 (265) E.L.T. 17 (SC) was followed and affirmed. The Hon'ble Supreme Court, by referring to the decision in the case of Syed Ali (cited supra) held that the 'proper officer' is the officer having jurisdiction over the person concerned and therefore, the law regarding the interpretation 'Proper Officer' is settled by the Hon'ble Supreme Court and this Court has made a finding in paragraphs 15 to 18 of the said judgment in W.P.Nos.10276 to 10281 of 2011 dated 09.07.2021, which reads as under: 15.In this backdrop, let us now consider the definition for -proper officer- enumerated under Section 2(34) of the Act. The proper officer is defined as ?in relation to any functions to be performed under the Act, means the Officer of Customs, who is assigned those functions by the Board or the Commissioner of Customs. Thus, the proper officer is defined so as to include the officer of customs, who is assigned those functions by the Board. In the present case, by invoking the powers under Section 4(1) of the Act, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner fails, as the facts and circumstances of the case decided by the Hon-ble Supreme Court are not connected with the grounds raised in the present writ petition by the respondents, this Court has no hesitation in forming an opinion that the petitioners have not established the ground of jurisdiction and thus, the petitioners are bound to respond to the show cause notices and on receipt of any such objections/explanations, the respondents are bound to continue the proceedings, conclude the same as expeditiously as possible. 18.In fine, all the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed 8. However, the grounds raised in this regard are to be raised before the appellate authority by the petitioners and the appellate authority is bound to consider facts and circumstances as well as the legal grounds, including the ground of principles of natural justice as raised by the petitioners with reference to the provisions of the Act and based on the judgments rendered by the High Courts and Hon'ble Supreme Court of India. 9. The preliminary issue regarding the entertainability of a writ petition in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of receipt of a copy of this judgment to file an appeal before the Commissioner of Customs (Appeals) and if the same is filed, the Commissioner of Customs (Appeals) shall entertain the appeal, without reference to the limitation as the writ petition was filed before this Court in the year 2016, which is well within the period of limitation, had the appellants filed appeals before the Commissioner of Customs (Appeals) at the relevant point of time. 10.Since the learned counsel for the appellants submitted that the certified copy of the impugned order was filed in the writ petition, the Registry is directed to return the impugned original order filed in the writ petition, after retaining a photostat copy. No costs. Consequently, connected miscellaneous petition is closed.? 9.... 10.... 11.This Court is of the considered opinion that all such grounds raised on merits are to be adjudicated with reference to the documents and evidences to be produced and the scope of the writ petition under Article 226 of the Constitution of India cannot be expanded so as to exercise the powers of the appellate authority in the matter of examination or scrutiny of orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the purpose of correcting omissions, commissions, errors in appreciation of evidence, etc. Powers of the High Court under Article 226 of the Constitution of India cannot be extended nor widened so as to allow lay hands on the facts and circumstances by conducting the trial, nor certain facts and circumstances with reference to documents and evidences can be assumed or presumed or inference can be drawn, which is not preferable. 14.... 15.As far as the judgment of the Hon'ble Supreme Court of India in the case of M/s.Canon India Private Limited (supra) is concerned, as rightly pointed out by the learned Senior Standing Counsels appearing on behalf of the respondents that the matter went to the Hon'ble Apex Court by way of regular appeal and the Hon'ble Supreme Court of India, while adjudicating the final orders passed by the Appellate Tribunal, formed an opinion that the issuance of show cause notice itself was by an improper authority. Thus, by citing the said finding, the appellate remedy otherwise provided under the Statute cannot be dispensed with, and in the event of accepting the said contention, in all such cases, every litigant will approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no hesitation in arriving at a conclusion that the petitioners are bound to exhaust the appellate remedy, either under Section 128 or Section 129 of the Customs Act, respectively. Thus, the petitioners are at liberty to approach the appellate authority and file an appeal by following the procedures contemplated and by complying with the conditions to prefer the appeal, within a period of 60 days from the date of receipt of a copy of this order, and in the event of filing of appeal(s) by the writ petitioners within a period of 60 days, all such appeals are directed to be entertained without reference to the period of limitation, and the matters are to be adjudicated on merits and in accordance with law and by affording opportunity to all the parties, and the appeals are to be disposed of as expeditiously as possible. 10. Therefore, following the decision referred to above, in these writ petitions also, the petitioners are granted liberty to approach the appellate authority and file an appeal by following the procedures as contemplated and by complying with the conditions to prefer the appeal, within a period of 60 days from the date of receipt of a copy of this order, and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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