Disposed

Sangit Agrawal & Anr. v. Union of India & Ors.

Delhi HC2 Dec 2024W.P.(C)/9888/2023

Case brief

AI extract

What is this about?

Writ petitions concerning show cause notices issued by DRI officers under Section 28 of the Customs Act were disposed of in terms of the Supreme Court's review judgment in Canon India, subject to the liberty and directions accorded therein.

What did the court decide?

Petitions disposed of subject to the liberty accorded in the Supreme Court's review judgment; no independent relief granted.

Sangit Agrawal & Anr. Vs Union of India & Ors. — Customs and Excise | Delhi HC (2024)

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$~22 to 25

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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W.P.(C) 3086/2023 & CM APPL. 12025/2023 (Interim Relief)

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NISHA GOEL & ANR. .....Petitioners Through: Mr. Priyadarshi Manish, Mrs. Anjali Jha Manish & Mr. Paras Aneja, Advs.

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versus

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UNION OF INDIA & ORS. .....Respondents Through: Mr. Aditya Singla & Mr. Rudresh Akshay Sain, Advs.

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W.P.(C) 13171/2023 & CM APPL. 52097/2023 (Interim Relief) M/S. AMBAY INDUSTRIAL CORPORATIONS .....Petitioner Through: Mr. Priyadarshi Manish, Mrs. Anjali Jha Manish & Mr. Paras Aneja, Advs.

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versus

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UNION OF INDIA & ORS. .....Respondents Through: Mr. Manish Kumar, SPC for R1. Mr. Aditya Singla & Mr. Rudresh Akshay Sain, Advs.

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W.P.(C) 4540/2023 & CM APPL. 17341/2023 (Interim Direction)

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MS HARDIK OVERSEAS PVT LTD THROUGH DIRECTOR & ORS. .....Petitioners Through: Mr. S Sunil & Mr. Shashwat Pandey, Adv.

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versus

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UNION OF INDIA & ORS. .....Respondents Through:

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/12/2024 at 12:52:45

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- W.P.(C) 9888/2023 & CM APPL. 38057/2023 (Interim Relief)

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SANGIT AGRAWAL & ANR. .....Petitioners

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Through: Mr. Priyadarshi Manish, Mrs. Anjali Jha Manish & Mr. Paras Aneja, Advs.

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versus

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UNION OF INDIA & ORS. .....Respondents Through: Mr. Aditya Singla & Mr. Rudresh Akshay Sain, Advs. Ms. Nidhi Raman, CGSC with Mr. Zubin Singh, Adv. for R1.

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CORAM:

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HON'BLE MR. JUSTICE YASHWANT VARMA HON'BLE MR. JUSTICE DHARMESH SHARMA

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O R D E R % 02.12.2024

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Mr. Manish, learned counsel appearing for the writ petitioners, draws our attention to the judgment handed down by the Supreme Court on the Review Petition No.400/2021 in Commissioner of Customs v. M/s Canon India Pvt. Ltd. and the provisions made in paragraph no.168 thereof and which reads thus:-

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“ 168 . In view of the aforesaid discussion, we conclude that:

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(i) DRI officers came to be appointed as the officers of customs vide Notification No. 19/90-Cus (N.T.) dated 26.04.1990 issued by the Department of Revenue, Ministry of Finance, Government of India. This notification later came to be superseded by Notification No. 17/2002 dated 07.03.2002 issued by the Department of Revenue, Ministry of Finance, Government of India, to account for administrative changes.

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(ii) The petition seeking review of the decision in Canon India (supra) is allowed for the following reasons:

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a. Circular No. 4/99-Cus dated 15.02.1999 issued by the Central Board of Excise & Customs, New Delhi which empowered the officers of DRI to issue show cause notices under Section 28 of the Act, 1962 as well as Notification No. 44/2011 dated 06.07.2011 which assigned the functions

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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/12/2024 at 12:52:45

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of the proper officer for the purposes of Sections 17 and 28 of the Act, 1962 respectively to the officers of DRI were not brought to the notice of this Court during the proceedings in Canon Ind ia (supra). In other words, the judgment in Canon India (supra) was rendered without looking into the circular and the notification referred to above thereby seriously affecting the correctness of the same.

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b. The decision in Canon India (supra) failed to consider the statutory scheme of Sections 2(34) and 5 of the Act, 1962 respectively. As a result, the decision erroneously recorded the finding that since DRI officers were not entrusted with the functions of a proper officer for the purposes of Section 28 in accordance with Section 6, they did not possess the jurisdiction to issue show cause notices for the recovery of duty under Section 28 of the Act, 1962.

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c. The reliance placed in Canon India (supra) on the decision in Sayed Ali (supra) is misplaced for two reasonsfirst, Sayed Ali (supra) dealt with the case of officers of customs (Preventive), who, on the date of the decision in Sayed Ali (supra) were not empowered to issue show cause notices under Section 28 of the Act, 1962 unlike the officers of DRI; and secondly, the decision in Sayed Ali (supra) took into consideration Section 17 of the Act, 1962 as it stood prior to its amendment by the Finance Act, 2011. However, the assessment orders, in respect of which the show cause notices under challenge in Canon India (supra) were issued, were passed under Section 17 of the Act, 1962 as amended by the Finance Act, 2011.

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iii) This Court in Canon India (supra) based its judgment on two grounds: (1) the show cause notices Issued by the DRI officers were invalid for want of jurisdiction; and (2) the show cause notices were issued after the expiry of the prescribed limitation period. In the present judgment, we have only considered and reviewed the decision in Canon India (supra) to the extent that it pertains to the first ground, that is, the jurisdiction of the DRI officers to issue show cause notices under Section 28. We clarify that the observations made by this Court in Canon India (supra) on the aspect of limitation have neither been considered nor reviewed by way of this decision. Thus, this decision will not disturb the findings of this Court in Canon India (supra) insofar as the issue of limitation is concerned.

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iv) The Delhi High Court in Mangali Impex (supra) observed that Section 28(11) could not be said to have cured the defect pointed out in Sayed Ali (supra) as the possibility of chaos and confusion would continue to subsist despite the introduction of the said section with retrospective effect. In view of this, the High Court

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declined to give retrospective operation to Section 28(11) for the period prior to 08.04.2011 by harmoniously construing it with Explanation 2 to Section 28 of the Act, 1962. We are of the considered view that the decision in Mangali Impex (supra) failed to take into account the policy being followed by the Customs department since 1999 which provides for the exclusion of jurisdiction of all other proper officers once a show cause notice by a particular proper officer is issued. It could be said that this policy provides a sufficient safeguard against the apprehension of the issuance of multiple show cause notices to the same assessee under Section 28 of the Act, 1962. Further, the High Court could not have applied the doctrine of harmonious construction to harmonise Section 28(11) with Explanation 2 because Section 28 (11) and Explanation 2 operate in two distinct fields and no inherent contradiction can be said to exist between the two. Therefore, we set aside the decision in Mangali Impex (supra) and approve the view taken by the High Court of Bombay in the case of Sunil Gupta (supra).

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(v) Section 97 of the Finance Act, 2022 which, inter-alia, retrospectively validated all show cause notices issued under Section 28 of the Act, 1962 cannot be said to be unconstitutional. It cannot be said that Section 97 fails to cure the defect pointed out in Canon India (supra) nor is it manifestly arbitrary, disproportionate and overbroad, for the reasons recorded in the foregoing parts of this judgment. We clarify that the findings in respect of the vires of the Finance Act, 2022 is confined only to the questions raised in the petition seeking review of the judgment in Canon India (supra). The challenge to the Finance Act, 2022 on grounds other than those dealt with herein, if any, are kept open.

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(vi) Subject to the observations made in this judgment, the officers of Directorate of Revenue Intelligence, Commissionerates of Customs (Preventive), Directorate General of Central Excise Intelligence and Commissionerates of Central Excise and other similarly situated officers are proper officers for the purposes of Section 28 and are competent to issue show cause notice thereunder. Therefore, any challenge made to the maintainability of such show cause notices issued by this particular class of officers, on the ground of want of jurisdiction for not being the proper officer, which remain pending before various forums, shall now be dealt with in the following manner:

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a. Where the show cause notices issued under Section 28 of the Act, 1962 have been challenged before the High Courts directly by way of a writ petition, the respective High Court shall dispose of such writ petitions in accordance with the observations made in this judgment and restore such notices for adjudication by the proper officer under Section 28.

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b. Where the writ petitions have been disposed of by the respective High Court and appeals have been preferred against such orders which are pending before this Court, they shall be disposed of in accordance with this decision and the show cause notices impugned therein shall be restored for adjudication by the proper officer under Section 28.

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c. Where the orders-in-original passed by the adjudicating authority under Section 28 have been challenged before the High Courts on the ground of maintainability due to lack of jurisdiction of the proper officer to issue show cause notices, the respective High Court shall grant eight weeks' time to the respective assessee to prefer appropriate appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT).

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d. Where the writ petitions have been disposed of by the High Court and appeals have been preferred against them which are pending before this Court, they shall be disposed of in accordance with this decision and this Court shall grant eight weeks' time to the respective assessee to prefer appropriate appeals before the CESTAT.

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e. Where the orders of CESTAT have been challenged before this Court or the respective High Court on the ground of maintainability due to lack of jurisdiction of the proper officer to issue show cause notices, this Court or the respective High Court shall dispose of such appeals or writ petitions in accordance with the ruling in this judgment and restore such notices to the CESTAT for hearing the matter on merits.

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f. Where appeals against the orders-in-original involving issues pertaining to the jurisdiction of the proper officer to issue show cause notices under Section 28 are pending before the CESTAT, they shall now be decided in accordance with the observations made in this decision.”

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Subject to the liberty as accorded therein, we dispose of these petitions.

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YASHWANT VARMA, J.

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DHARMESH SHARMA, J.

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DECEMBER 02, 2024/Ch

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/12/2024 at 12:52:45

Sangit Agrawal & Anr. v. Union of India & Ors.

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Sangit Agrawal & Anr. v. Union of India & Ors.

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