IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.-

Decided on 09.01.2025

1. CUSAP-8-2021 (O&M)

Gursam International ....Appellant VERSUS Commissioner of Customs ....Respondent

2. CUSAP-12-2016 (O&M)

M/s Sundesh Springs Pvt. Ltd. ....Appellant VERSUS Commissioner of Customs ....Respondent

3. CUSAP-1-2017 (O&M)

M/s Girnar Impex Ltd. ....Appellant VERSUS Commissioner of Customs ....Respondent

4. CUSAP-6-2016 (O&M)

M/s Siri Amar Exports. ....Appellant VERSUS Commissioner of Customs ....Respondent

5. CUSAP-8-2016 (O&M)

Adhishwar Jain ....Appellant VERSUS Commissioner of Customs ....Respondent CORAM : HON'BLE MR. JUSTICE ARUN PALLI HON’BLE MRS. JUSTICE SUDEEPTI SHARMA Present: For the Appellants Mr. Anurag Sharma, Advocate Mr. Deepak Gupta, Advocate For the respondents Mr. Sourabh Goel, Sr. Standing Counsel with Ms. Geetika Sharma, Advocate for the respondents-DRI. Mr. Rajesh Sethi, Advocate for the respondents-Customs -.-

SUDEEPTI SHARMA, J.

1. Since common question of law is involved in the above-numbered appeals, therefore, we decide these appeals vide this common judgment.

2. The challenge in the present appeals under Section 130 of the Customs Act, 1962 is to the orders passed in the appeals by the learned Customs, Excise and Service Tax Appellate Tribunal (CESTAT), whereby the appellants are directed to deposit 25% of the penalty as pre-deposit to hear the appeals, on the ground that the show cause notices issued under Section 28 of the Customs Act, 1962, are without jurisdiction, in view of judgment passed by the Hon’ble Supreme Court in M/s Canon India Private Limited Vs. Commissioner of Customs [2021 SCC Online SC 200] Civil Appeal No.1827 of 2018 decided on 09.03.2021.

3. Relevant portion of the judgment of Hon’ble Supreme Court in the case of M/s Canon India Private Limited (supra), is reproduced as under:-

“4. The main issue is whether after clearance of the cameras on the basis that they were exempted from levy of basic Customs duty under Notification No.15/2012, the proceedings initiated by the Directorate of Revenue Intelligence for recovery of duty not paid under section 28(4) of the Customs Act, 1962 are valid in law.

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9. The question that arises is whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power conferred by the statute i.e. under Section 28(4) of the Act. This Section empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts and confers the power of recovery on "the proper officer". The obvious intention is to confer the power to recover such duties not on any proper officer but only on "the proper officer". This Court in Consolidated Coffee Ltd. and Another v. Coffee Board, Bangalore, (1980) 3 SCC 358 has held:-

"14. ...Secondly, and more importantly, the user of the definite article `the' before the word `agreement' is, in our view, very significant. Parliament has not said `an agreement' or `any agreement' for or in relation to such export and in the context the expression `the agreement' would refer to that agreement which is implicit in the sale occasioning the export."

In Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd., (2001) 3 SCC

609 has held:-

"9. ...'The' is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalizing force of `a' or `an'. It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. `The' is always mentioned to denote a particular thing or a person."

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16. At this stage, we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 2