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Judgment
ASHWANI KUMAR MISHRA, ACJ. (Oral)
This petition is directed against the order in original dated 15.05.2015 contained in Annexure P-10, whereby the demand of ₹5.07 crore has been imposed upon the petitioner together with penalty of ₹1 crore. The proceedings against the petitioner were under the provisions of the Customs Act.
The writ petition was allowed by this court relying upon the judgment of the Supreme Court in the case of M/s Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) ELT 3 (S.C.).
It transpires that a review application was later filed in M/s. Canon India Private Limited and the original judgment of this court was reviewed by the Supreme Court. In the review, the Supreme Court reversed the earlier view taken by it in M/s. Canon India Private Limited (supra) and held in Commissioner of Customs v. M/s Canon India Private Limited, 2024 (390) E.L.T. 545 (S.C.), that the officer who had issued the notice was the proper officer. The conclusions of the Court are contained in para 168 (vi), which is reproduced hereinafter:
168.(i) to (v) xxx... xxx... xxx...
(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 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:
(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.
(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.
(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).
(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.
(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.
(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.”
In view of the order passed by the Supreme Court in the Review Petition, judgment passed earlier cannot be sustained, the view taken earlier by this court on 04.08.2021 cannot be subscribed to. In view of the subsequent judgment of the Supreme Court delivered in review, the challenge laid to the order impugned on the ground that the proceedings were not initiated by the proper officer, has to be rejected.
In view of the direction contained in (vi)(c) of para 168, the petitioner will be at liberty to challenge the order of the assessing authority before the Customs Excise and Service Tax Appellate Tribunal. For such purpose, the Supreme Court has already allowed eight weeks’ time to the assessee to prefer appeal. Following the observations contained in the judgment of the Supreme Court, as aforesaid, we also provide that in the event the petitioner prefers an appeal within eight weeks from today, the same shall be entertained without raising any objection with regard to the limitation.
The petition stands disposed with above observations.