D. Y. CHANDRACHUD, J. B. PARDIWALA, MANOJ MISRA
Commissioner of Customs – Appellant
Versus
Canon India Pvt. Ltd. – Respondent
What is the scope of review jurisdiction under Article 137 and Order XLVII for correcting errors in Canon India (supra) a) is DRI a proper officer under Section 2(34) for Section 28? b) can Section 6 entrustment be mandatory to empower DRI for Section 28? What is the meaning and interplay of Section 17 and Section 28 of the Customs Act, 1962 post-2011 amendments regarding assessment, reassessment, and recovery of duties, including the impact of self-assessment and the need for a single proper officer? What is the constitutionality and proper scope of Section 97 (Finance Act, 2022) and Section 110AA in validating past actions and in integrating with Section 28(11) and Explanation 2?
Key Points: - (!) (!) (!) - (!) (!) (!) - (!) (!) (!) - (!) (!) (!)
JUDGMENT :
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the following parts: -
| INDEX | |
| A. | FACTUAL BACKGROUND OF THE REVIEW PETITION |
| B. | SUBMISSIONS ON BEHALF OF THE DEPARTMENT i. Error apparent in the judgment under review ii. Why the decision in Sayed Ali (supra) requires reconsideration iii. The decision in Mangali Impex (supra) is liable to be set aside and the decision in Sunil Gupta (supra) ought to be affirmed iv. Changes introduced by the Finance Act, 2022 are in the nature of surplusage |
| C. | SUBMISSIONS ON BEHALF OF THE RESPONDENTS |
| D. | ISSUES FOR CONSIDERATION |
| E. | ANALYSIS i. Review jurisdiction ii. The decision in Commissioner of Customs v. Sayed Ali iii. Changes to Section 17 w.e.f. 11.04.2011 – the assessment of bill(s) of entry and shipping bill(s) iv. Scheme of Sections 17 and 28 of the Act, 1962 v. Use of the article ‘the’ in the expression “the proper officer” vi. DRI officers as proper officers under section 2(34) vii. Section 4 of the Act, 1962 viii. Section 6 of the Act, 1962 ix. Observations on the constitutional validity of Section 28 (1 |
Commissioner of Customs v. Sayed Ali and Another reported in (2011) SCC 537 [Para 4]
Girdhari Lal Gupta v. D. H. Mehta reported in (1971) 3 SCC 189 [Para 63]
Yashwant Sinha v. CBI reported in (2020) 2 SCC 338 [Para 65]
Sow Chandra Kant and Anr. v. Sheikh Habib reported in (1975) 1 SCC 674 [Para 66]
State of Andhra Pradesh v. Ganesweara Rao
Shreya Singhal v. Union of India reported in (2015) 5 SCC 1 [Para 152]
Empire Industries Ltd. v. Union of India reported in (1985) 3 SCC 314 [Para 161]
Indian Aluminium Company Co. vs. State of Kerala reported in (1996) 7 SCC 637 [Para 162]
Bhavesh D. Parish v. Union and India reported in (2000) 5 SCC 471 [Para 165]
Shri Prithvi Cotton Mills Ltd. and Ors. v. Broach Borough Municipality & Ors.
DRI officers are designated as proper officers under the Customs Act, enabling them to issue show cause notices under Section 28, overruling previous judgments that restricted their authority.
No requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show-cause notice, ar....
Point of Law : when the statute directs that “the proper officer” can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone.
The central legal point established in the judgment is that DRI officers are not proper officers under the Customs Act, and their show cause notices lack jurisdiction and are ab initio void, as estab....
Show cause notices issued prior to 29.03.2018 must be adjudicated within one year from that date; otherwise, they lapse.
The court affirmed that the power under Section 28 of the Customs Act allows for the determination of duties without requiring prior verification of self-assessment under Section 17.
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