2024:BHC-OS:19408-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1204 OF 2018 Idea Cellular Ltd. ...Petitioner Versus The Union of India & Ors. ...Respondents _____________________________________________________

Mr. Gopal Mundhra a/w Ms. Virangana Wadhwan, Mr. Parth Parikh and Ms. Bhargavi Shukla i/b. Economic Laws Practice for Petitioner.

Mr. J. B. Mishra a/w Ms. Sangeeta Yadav for Respondent.

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CORAM : M. S. Sonak &

Jitendra Jain, JJ.

DATED : 26 November 2024 PC.:-

1. Heard learned counsel for the parties.

2. This petition challenges the impugned Order-in-Original dated 5 October 2017, made after adjudication of the show cause notice dated

18 December 2014.

3. Both the show cause notice and Order-in-Original were challenged inter alia on the ground that the Directorate of Revenue Intelligence (DRI) officers cannot be considered as “proper officers” for issuing the show cause notice. Reliance was almost entirely placed on the decision of the Hon’ble Supreme Court in the case of Commissioner of Customs Vs. Canon India Private Limited ¹

4. In addition, the Petitioner has also challenged Note 3 in the Notification No.125/2010/Cus dated 16 December 2010 has been ultra vires the Customs Act, 1962 and the Customs Tariff Act, 1975.

1 AIR 2021 SC 1699

5. This petition was kept pending because Review Petition No.400 of 2021, filed before the Hon’ble Supreme Court, sought to review the decision in Canon India Private Limited (supra).

6. The Hon’ble Supreme Court, vide its order dated 7 November 2024, has disposed of the review petition by observing that the decision passed in the Canon India Private Limited (supra) did not consider the notification and provisions of law since the same was not brought to their notice. The Supreme Court, in the review petition, held that a DRI officer is a “proper officer” for issuing show cause notice. The Hon’ble Supreme Court also upheld the Validation Act by which amendment, the DRI officers were empowered to issue show cause notice. Now that the review petition filed by the revenue has been allowed, the petition is taken up for disposal.

7. The reasons/directions recorded in paragraph 168 of the Hon’ble Supreme Court’s order dated 7 November 2024, is reproduced below for the convenience of reference:-

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

(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.

(ii) The petition seeking review of the decision in Canon India (supra)

is allowed for the following reasons:

a. Circular No. 4/99-Cus dated 15.02.1999 issued by the Central BBooaarrdd ooff EExxcciissee && CCuussttoommss,, NNeeww DDeellhhii wwhhiicchh eemmppoowweerreedd tthhee 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 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 India (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.

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, th