TMI Blog2021 (9) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... SIONER OF CUSTOMS, CUSTOM HOUSE, TUTICORIN, THE ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF REVENUE INTELLIGENCE, CHENNAI, THE ASSISTANT COMMISSIONER OF CUSTOMS (ARC) [ 2021 (10) TMI 122 - MADRAS HIGH COURT] , there was an occasion to consider all these aspects, including the import of the law declared by the Canon India case, where it was held that all the queries/objections raised by the learned Standing Counsel appearing for the respondent Customs herein, including that, as against Canon India judgment, review has been field and by virtue 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. Though a plea was raised by the Revenue side, that even in Deepak Gopaldas Bajaj batch case, as against the Canon India case, the Revenue has filed review, that aspect also has been considered by the learned Judge of the Karnataka High Court in the judgment which has been taken note of in Deepak Gopaldas Bajaj batch case - Also, it is to be noted that, subsequent to Canon India case dated 09.03.2021, a similar issue ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il as claimed by the petitioner. 2.2. In this regard, show cause notice was issued to the petitioner on 06.12.2012, by the Additional Director General, DRI, Zonal Unit, Chennai. That show cause notice, after adjudication, ended in an orderin- original of the respondent dated 20.02.2014. 2.3. Felt aggrieved over the said order-in-original, the petitioner preferred an appeal before the CESTAT, Chennai, which having considered the appeal of the petitioner allowed to the extent to set aside the order-in-original and remanded the matter back to the original authority to have a denovo enquiry and to pass orders. 2.4. Pursuant to which, denovo enquiry was conducted and after denovo, order-in-original was again passed by the respondent on 21.11.2014. Even this order once again was interjected by the petitioner by way of appeal preferred before the CESTAT. This time also, the CESTAT, of course, having considered the grounds raised by the petitioner that, the petitioner was not given the chance of cross- examining the witnesses or persons concerned, set aside the order-inoriginal ie., the order passed in denovo enquiry and once again remanded the matter back to the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icials are not proper officers within the meaning of Section 21 and therefore, whatever proceedings initiated by way of show cause notice towards adjudication are vitiated on that ground itself. 7. In view of the law having been declared so by the Hon'ble Supreme Court in the Canon India case, the petitioner has given representations on 17.03.2021 and 25.03.2021 to the respondent/Revenue to take the law declared by the Hon'ble Supreme Court in Canon India case and accordingly, drop the proceedings at the show cause notice stage and consequently, refund the amount and bank guarantee deposited during the investigation, to the petitioner. 8. Since those requests made by the petitioner dated 17.03.2021 and 25.03.2021 have not been considered, the petitioner was triggered to file these writ petitions with the respective prayers. 9. Stating all these aforesaid findings, learned counsel appearing for the petitioner would submit that, after 03.01.2018 CESTAT order, the respondent/Revenue has to wait for the decision to be made by the Hon'ble Supreme Court in Mangali Impex Case. But the fact remains that the said case is still pending before the Supreme Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 09.03.2021 may not be applicable to the facts of the present case, as the petitioner having accepted the show cause notice had responded to the same and after adjudication, suffered with order-in-original twice, of course, which are subject matter before the CESTAT and both time, the petitioner was able to succeed before the CESTAT, to get a remand order. Therefore, at this eleventh hour, the benefit accrued on the basis of the law declared by the Hon'ble Supreme Court in Canon India case cannot be enjoyed by the petitioner as that ruling would apply to cases where the respective noticees challenge the order-in-original or show cause notice without going for regular appeal, to set aside the same, on the ground of want of jurisdiction. Since, such a situation is not available to the petitioner, the Canon India case cannot be availed by the petitioner and therefore, on that ground, these writ petitions cannot be entertained by this Court. 13. Learned Standing Counsel would also submit that the validity of the order passed by the CESTAT dated 03.01.2018 itself is in question in the regular appeal in C.M.A. Sr.No.17943 of 2019, before this Court. At this stage, nullifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 shortlevied 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.) (b) The person chargeable with the duty or interest, may pay, before service of notice under clause (a) on the basis of (i). His own ascertainment of such duty; or (ii). The duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under Section 28AA or the amount of interest which has not been so paid or part-paid: (PROVIDED) that the proper officer shall not serve such show cause notice, where the amount involved is less than rupees one hundred. 17. The word The proper officer has been mentioned in Section 28(1)(a) of the Act, under which, only the proper officer shall initiate the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 re-assessment and recovery of duties i.e. contemplated by Section 28(4) is by the same authority and not by any superior authority such as Appellate or Revisional Authority. It is, therefore, clear to us that the Additional Director General of DRI was not the proper officer to exercise the power under Section 28(4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside. At this stage, we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 28(4) was even a proper officer. The Additional Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 well as the Canon India case are similarly placed. 21. However when this decision of Canon India case was brought to the notice of the learned Judge, who dealt with the batch of cases in Sri Sathya Jewellery cited supra, the learned Judge in paragraph No.6 of the judgment has taken the following view: 6.The respective learned Senior Standing Counsels appearing on behalf of the respondents objected the said contentions by stating that the respondents have already filed review petitions in Review Petition (Diary) Nos.9580, 9584, 9587, 9591 of 2021 before the Hon'ble Supreme Court of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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) 265 ELT . Subsequent to the judgment of Apex Court in Sayed Ali's case (supra), certain amendments were effected to the Customs Act, including the introduction of Section 28(11) inserted by the Customs (Amendment and Validation Act) 2011 with effect from 16.09.2011 to the effect that ..... all persons appointed as officers of Customs under sub-section (1) of Section 4 .....shall be deemed to have been and always had been the proper officers for the purposes of this Section. The effect of such amendments was considered by High Court of Delhi in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake re-assessment [which is involved in Section 28(4)]. Accordingly, the Apex Court has held that Section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment could only undertake the re-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the petitioners. 24. It needs to be noted that the High Court of Madras (Madurai Bench) by order dated 16.03.2021 in the case of Quantum Coal Energy Pvt. Ltd. vs. The Commissioner of Customs in W.P.(MD) Nos.10186 10187 of 2014 and M.P.(MD) Nos.1 1 of 2014 has taken a different stand by setting aside the proceedings initiated by the Customs Authority where the show cause notice was issued by the Additional Director General of DRI while referring to the judgment in the case of M/s.Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the order-inoriginal the writ petition would not be entertained unless the appeal remedy is exhausted and the tax payer/assessee has to approach the High Court only through proper channel by filing an appeal against the order passed by the appellate authority. However, there are exceptions to the general rule, where, under three circumstances the 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 is vitiated. 28. Here in the case in hand, though the said plea of want of jurisdiction was raised there was no ground 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 Canon India's judgment atleast two decisions of this Court as well as the Karnataka High Court on the same point by the respective writ courts had been rendered, where, in the judgment of the Karnata High Court referred to above, this issue has been extensively discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive impugned orders and the consequential impugned order, in all these writ petitions are quashed. In view of the same, it is open to the respondents to act upon in the manner known to law, especially under the provisions of Customs Act by taking into account the law laid down by the Hon'ble Supreme Court in Canon India case cited supra. 33. In fine, these writ petitions are ordered accordingly. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 17. Though a plea was raised by the Revenue side, that even in Deepak Gopaldas Bajaj batch case cited supra, as against the Canon India case dated 09.03.2021, the Revenue has filed review, that aspect also has been considered by the learned Judge of the Karnataka High Court in the judgment which has been taken note of in my order dated 08.09.2021. Also, it is to be noted that, subsequent to Canon India case dated 09.03.2021, a similar issue came up before the Hon'ble Supreme Court in the case of Commissioner of Customs, Kandla Vs. M/s. Agarwal Metals and Alloys in Civil Appeal No.3411 of 2020, where the Hon'ble Supreme Court by order dated 31.08.2021, has pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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