TMI Blog2021 (10) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... be questioned in a writ petition. Here in the case in hand, since the said plea of want of jurisdiction was not raised as there was no such ground was available at the time of filing the writ petitions in the year 2018, however during the pendency of the writ petition law has developed and the Canon India judgment has come in March 2021. After judgment of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [ 2021 (3) TMI 384 - SUPREME COURT] atleast two decisions from this Court as well as the Karnataka High Court on the same point had been rendered, where, in the judgment of the Karnata High Court referred to above, this issue has been extensively discussed and by applying the ratio of Canon India judgment the learned Judge allowed the writ petition stating that the proceedings initiated under Section 28 of the Customs Act by any other officer other than a proper officer shall be vitiated, therefore, the entire proceedings was interfered with and set aside. Since admittedly the Show Cause Notice dated 17.03.2009 was issued by the Additional Director General of Directorate of Revenue Intelligence, Chennai which culminated in the impugned order-in-original dated 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper officer should have been nominated or appointed for the specific purpose by the Central Government. However, the Directorate of Revenue Intelligence Officials are not the proper officers as they have not been specifically appointed, as such within the meaning of Section 6 of the Customs Act. 7. In this context, it is the further contention of the learned counsel for the petitioner that, the issue as to whether the officials of the Directorate of Revenue Intelligence can be treated as a proper officer for the purpose of Section 28(1) of the Customs Act to initiate the proceedings and conclude the same, there has been a direct decision whereby the law has been declared by the Hon'ble Supreme Court in a recent judgment dated 09.03.2021 made in Canon India Private Limited Vs. Commissioner of Customs. 8. Heavily relying upon the law declared by the Hon'ble Supreme Court in Canon India case, the learned counsel for the petitioner would contend that, since the Directorate of Revenue Intelligence officials are not automatically treated as proper officers within the meaning of Section 28 of the Customs Act, it was held that, in the said decision, by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, of course after the law declared by the Hon'ble Supreme Court in Canon India case, the learned counsel for the petitioner would submit that, in the present case also the very same facts are available, where, admittedly the Directorate of Revenue Intelligence officials have initiated proceedings under Section 28 of the Customs Act by issuing the Show Cause Notice referred to above dated 17.03.2009. Therefore the said Show Cause Notice which is culminated in the order impugned dated 28.08.2014 cannot stand in the legal scrutiny in view of the law declared by the Hon'ble Supreme Court in Canon India case, therefore, the entire proceedings has been vitiated, he contended. 11. Heard the learned Standing Counsel appearing for the respondent Customs who would submit that, in so far as the law laid down by the Hon'ble Supreme Court in Canon India case is concerned, the Customs Department filed a review before the Hon'ble Supreme Court and the same is still pending, therefore, no conclusive decision can be arrived at on the principles laid down in the Canon India case as of now. The learned Standing Counsel would also submit that, in the year 2018, when these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Supreme Court in Canon India case was not referred and the same has not been taken note. 15. I have considered all these rival submissions made by the learned counsel appearing for both sides and have perused the materials placed before this Court. 16. Section 28(1) of the Customs Act, after it underwent amendment in 2011, reads thus: Where any duty has not been levied or not paid or has been short-levied or short paid or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded for any reason other than the rasons of collusion or any wilful mis-statement or suppression of facts. (a)The proper officer shall, within (two years) from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied (or paid) or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. (PROVIDED that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definite article the before the word agreement is, in our view, very significant. Parliament has not said an agreement or any agreement for or in relation to such export and in the context the expression the agreement would refer to that agreement which is implicit in the sale occasioning the export. In Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd. has held:- 9. ... The is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalizing force of a or an . It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. The is always mentioned to denote a particular thing or a person. 1. There are only two articles a (or an) and the . `a (or an) is known as the Indefinite Article because it does not specifically refer to a particular person or thing. On the other hand, the is called the Definite Article because it points out and refers to a particular person or thing. There is no doubt that, if Parliament intended that any proper officer could have exercised power under Section 28 (4), it could have used the word any . It is obvious that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ensuing demands are also set aside. 20. After having analyzed the fact whether the Directorate of Revenue Intelligence officials are proper officers under the provisions of the Customs Act especially in the context of Section 28, the Hon'ble Supreme Court has held that, the proceedings in the said case initiated by the Additional Director General Directorate of Revenue Intelligence, by issuing the Show Cause Notice was invalid and without any authority of law and the same therefore was liable to be set aside. 21. The subtle difference in this case is only the provision. Here, the Show Cause Notice was issued under Section 28(1) of the Customs Act and in that case, since in 2011 Section 28 of the Customs Act underwent amendment under which Sub-section(4) was inserted by which extended limitation has been made and therefore in that case, under Sub Section (4) of Section 28 such notice was issued. However, in the present case in hand, since it was in the year 2009 i.e pre-amendment, notice was issued under Section 28(1) of the Act itself under the unamended sub section(1) of Section 28. Otherwise, the issue is one and the same and factually the petitioners' case as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made by the learned Judge of the Karnataka High Court, where, under the heading ''applicability of judgment in M/s.Canon India case'' the learned Judge has discussed the following: 5) Applicability of judgment in M/s.Canon India Private Limited: (i) It is to be noticed that the starting point of the present proceedings relates to the show cause notice dated 07.01.2008 which relates to the period prior to 2011. Certain amendments were made to the Customs Act, 1962 in 2011. Under Section 28 of the Customs Act as was applicable during the relevant period of time, the power is vested in 'the proper officer' to take action where duty has not been levied or has been short-levied or erroneously refunded and such proceedings was to be taken by 'the proper officer.' Subsequent to the amendment of Section 28, 'the proper officer' still retains jurisdiction, though there are certain procedural modifications. (ii) The aspect of who is 'the proper officer' as regards to Section 28 of the Customs Act prior to the amendment was considered by the Apex Court in the case of Commissioner of Customs v. Sayed Ali and Another reported in (2011) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the user of the definite article the before the word agreement is, in our view, very significant. Parliament has not said an agreement or any agreement for or in relation to such export and in the context the expression the agreement would refer to that agreement which is implicit in the sale occasioning the export. The Apex Court while referring to ' the proper officer' found in Section 28 has specifically recorded a finding that it is only 'the proper officer', and 'that proper officer' alone can adjudicate the matter. Further Apex Court has clarified at para 15 as follows: 15. ...... We find it completely impermissible to allow an officer, who has not passed the original order of assessment, to re-open the assessment on the grounds that the duty was not paid/not levied, by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28(4) to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set-aside . (ix) In the present case, applying the law laid down in the case of M/s.Canon India Private Limited (supra) clearly, the proceedings that have been initiated by issuance of a show cause notice dated 07.01.2008 by the Additional Director General, DRI is also liable to be set aside in light of the law laid down by the Apex Court as referred to above. 23. While judgment of High Court of Madras in the case of Commissioner of Customs (Air) vs. M/s. Premier Tours Travels (Chennai) Pvt. Ltd. and another, in C.M.A. No. 2746/2009 and M.P. No.1/2009 dated 04.02.2021 where identical contentions were raised and the consideration of such aspect has been relegated to be decided in the appeal, however this Court does not find any reason to take the same view, in light of the clear findings in the case of M/s.Canon India Private Limited (supra) which does not leave any scope for further adjudication and the law laid down by the Apex Court ought to enure to the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amendment made in Section 28 by inserting Sub Section (11) the Customs Authorities have every right to issue Show Cause Notice by any official, who can be treated as a proper officer, have been considered and answered. 27. I am in respectful agreement with the view taken by the learned Judge of the Karnataka High Court in the said case in Sri Mohan C.Suvarna cited supra. 28. It is a settled preposition of law that, normally in tax matters, as against the order-in-original the writ petition would not be entertained unless the appeal remedy is exhausted and the tax payer/assessee can approach the High Court only after exhausting the appeal remedy. However, there are exceptions to the general rule, where, under three circumstances writ petitions are entertained. In the first category, if the principle of natural justice is violated and in the second category if there is any statutory violation and in third category if for want of jurisdiction the order passed by the authorities concerned can be questioned in a writ petition. 29. Here in the case in hand, since the said plea of want of jurisdiction was not raised as there was no such ground was available at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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