M/s.Target Lubricants Pvt. Ltd. v. The Commissioner of Customs Custom House & Ors.

WP(MD)Nos.8574, 8579 & 8581 of 20212.For the sake of convenience, the facts as projected by thepetitioner in W.P.(MD)No.8574 of 2021 is traversed hereunder: 2.1.The Directorate of Revenue Intelligence, Regional Unit atCoimbatore had seized mineral oil contained in 25 barrels, whichwere imported vide Bill of Entry No.2247161 dated 12.10.2010, bytheir operation on 21.10.2010, on the suspicion that it was base oiland not rubber processing oil as claimed by the petitioner.2.2.In this regard, show cause notice was issued to thepetitioner on 06.12.2012, by the Additional Director General, DRI,Zonal Unit, Chennai. That show cause notice, after adjudication, ended in an order-in-original of the respondent dated 20.02.2014.2.3.Felt aggrieved over the said order-in-original, thepetitioner preferred an appeal before the CESTAT, Chennai, whichhaving considered the appeal of the petitioner allowed to the extentto set aside the order-in-original and remanded the matter back tothe original authority to have a denovo enquiry and to pass orders.2.4.Pursuant to which, denovo enquiry was conducted and afterdenovo, order-in-original was again passed by the respondent on21.11.2014. Even this order once again was interjected by thepetitioner by way of appeal preferred before the CESTAT. This timealso, the CESTAT, of course, having considered the grounds raised bythe petitioner that, the petitioner was not given the chance ofcross-examining the witnesses or persons concerned, set aside theorder-in-original ie., the order passed in denovo enquiry and onceagain remanded the matter back to the original authority.2.5.In this regard, it is to be noted that, while the CESTATpassed orders on 03.01.2018, remanding the matter to the originalauthority, a direction was given that the adjudication can beconducted by the original authority after a decision is made by theHon'ble Supreme Court in Mangali Impex Ltd. & others Vs. Union ofIndia, which was pending before the Hon'ble Supreme Court. 3.It is to be noted that, after the 2011 amendment, underwhich, Section 28 of the Customs Act underwent an amendment, Sub-Section 11 of Section 28 was inserted by which, power has beenvested with the DRI officials also to initiate adjudicationproceedings by issuing show cause notice and when that wasquestioned; the Delhi High Court in Mangali Impex Case has taken adecision in favour of the noticees as that insertion of Sub-Section11 of Section 28 would only have a prospective effect. Therefore, whatever proceedings initiated prior to the amendment ie., prior to2011 should be governed only by the then existing provisions ofSection 28. As against the said view taken by the Delhi High Courtin Mangali Impex Case, the Revenue preferred an appeal before the2/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021Hon'ble Supreme Court by way of Special Leave Petition and that wasthe case pending before the Hon'ble Supreme Court which was in factreferred by the CESTAT, while passing the order of remand dated03.01.2018.4.When that was the position, since the Mangali Impex Case wasstill pending before the Hon'ble Supreme Court, the originalauthority either has to decide the issue after the Mangali ImpexCase is decided or can prefer an appeal against the order passed bythe CESTAT.5.In this context, it is to be noted that, as projected by therevenue side that, as against the order passed by the CESTAT dated03.01.2018, though belatedly, appeal was filed in C.M.A. Sr.No.17943of 2019 and that is at the condone delay stage and the said appealis pending before this Court.6.Be that as it may, subsequently, the issue had once againbeen considered as to whether the DRI officials can be treated asproper officials within the meaning of Section 28(1) and 28(4) ofthe Customs Act, in the case of M/s.Canon India Pvt. Ltd., Vs.Commissioner of Customs reported in 2021 SCC Online SC 200, wherethe Hon'ble Supreme Court by order dated 09.03.2021 has held that, the DRI officials are not proper officers within the meaning ofSection 21 and therefore, whatever proceedings initiated by way ofshow cause notice towards adjudication are vitiated on that grounditself.7.In view of the law having been declared so by the Hon'bleSupreme Court in the Canon India case, the petitioner has givenrepresentations on 17.03.2021 and 25.03.2021 to therespondent/Revenue to take the law declared by the Hon'ble SupremeCourt in Canon India case and accordingly, drop the proceedings atthe show cause notice stage and consequently, refund the amount andbank guarantee deposited during the investigation, to thepetitioner.8.Since those requests made by the petitioner dated 17.03.2021and 25.03.2021 have not been considered, the petitioner wastriggered to file these writ petitions with the respective prayers.9.Stating all these aforesaid findings, learned counselappearing for the petitioner would submit that, after 03.01.2018CESTAT order, the respondent/Revenue has to wait for the decisionto be made by the Hon'ble Supreme Court in Mangali Impex Case. Butthe fact remains that the said case is still pending before theSupreme Court. However in the meanwhile, the issue has been given aquietus and the law has been declared in Canon India case by orderdated 09.03.2021. By virtue of that, the entire proceedings issuedby the DRI officials against the petitioner by issuance of show3/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021cause notice dated 06.12.2021, got vitiated and therefore, theyshould drop the proceedings and refund the amount and bank guaranteewhich has been deposited or paid by the petitioner during theinvestigation and when these requests have been made, since the saidrequests have not been considered by the respondents, the petitionerhaving no other option has approached this Court by invoking theextraordinary jurisdiction of this Court under Article 226 of theConstitution. 10.In this context, learned Counsel for the petitioner wouldsubmit that, the law declared by the Hon'ble Supreme Court in CanonIndia case has been followed in number of cases throughout thecountry and in this regard, atleast two orders have been passed bythis Court in the writ jurisdiction and one more order has beenpassed by the High Court of Karnataka, of course, strictly followingthe Supreme Court in Canon India case. Learned Counsel appearing forthe petitioner would seek indulgence of this Court to pass necessaryorders quashing the impugned show cause notice dated 06.12.2012, onthe ground of want of jurisdiction and consequently, direct therespondent to refund the amount deposited by the petitioner duringinvestigation.11.Per contra, Mr.R.Aravindan, learned Standing Counselappearing for the respondent/Revenue, on instructions would submitthat, as against the order of remand passed by the CESTAT dated03.01.2018, appeal has been filed, of course with condone delaypetition in C.M.A. Sr.No.17943 of 2019 and on that stage, it isstill pending before this Court. After having suffered with anorder-in-original, the petitioner had already approached the CESTATand first time, though got a remand order, a denovo order-in-original has been passed, as against which, once again thepetitioner preferred an appeal before the CESTAT, where though hewas able to get an order in his favour, he cannot now turn aroundand state that the show cause notice dated 06.12.2012 is vitiatedfor want of jurisdiction.12.In this context, learned Standing Counsel would furthercontend that, the law declared in Canon India case dated 09.03.2021may not be applicable to the facts of the present case, as thepetitioner having accepted the show cause notice had responded tothe same and after adjudication, suffered with order-in-originaltwice, of course, which are subject matter before the CESTAT andboth time, the petitioner was able to succeed before the CESTAT, toget a remand order. Therefore, at this eleventh hour, the benefitaccrued on the basis of the law declared by the Hon'ble SupremeCourt in Canon India case cannot be enjoyed by the petitioner asthat ruling would apply to cases where the respective noticeeschallenge the order-in-original or show cause notice without goingfor regular appeal, to set aside the same, on the ground of want ofjurisdiction. Since, such a situation is not available to the4/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021petitioner, the Canon India case cannot be availed by the petitionerand therefore, on that ground, these writ petitions cannot beentertained by this Court. 13.Learned Standing Counsel would also submit that the validityof the order passed by the CESTAT dated 03.01.2018 itself is inquestion in the regular appeal in C.M.A. Sr.No.17943 of 2019, beforethis Court. At this stage, nullifying all these proceedings, thepetitioner cannot seek for quashment of the impugned show causenotice dated 06.12.2012, as the said show cause notice having beenaccepted and acted upon. Therefore, learned Standing Counsel for therespondents would submit that, the petitioner cannot have asuccessful challenge of the show cause notice dated 06.12.2012, atthis stage in the present writ petition. Consequently, they are notentitled to get back the amount and bank guarantee. Therefore, theprayers in these writ petitions are liable to be dismissed.14.I have considered the submissions made by the learnedCounsel appearing for the parties and have perused the materialsplaced before this Court. 15.Now the only controversy arising in these cases is that, whether the principle laid down by the Hon'ble Supreme Court or thelaw declared by the Supreme Court in Canon India case dated09.03.2021 can be made applicable to the petitioner's case andaccordingly, the prayers sought for in these writ petitions can beallowed or not.16.The judgment of the Supreme Court in Canon India case hasalready been considered by this Court two times. In earlieroccasion, a learned Judge of this Court in W.P.(MD)No.10186 and10187 of 2014, in the case of Quantum Coal Energy (P) Ltd., vs. theCommissioner, office of the Commissioner of Customs, Tuticorin, byits order dated 16.03.2021 has considered the import of Canon Indiacase, and allowed those writ petitions. Thereafter, when similarwrit petitions came up before me in W.P.(MD)Nos.4032 to 4034 of2018, I had an occasion to consider all these aspects, including theimport of the law declared by the Canon India case, where, by orderdated 08.09.2021, having exhaustively considered these aspects, Ipassed the following orders:“15. I have considered all these rivalsubmissions made by the learned counsel appearing forboth sides and have perused the materials placedbefore this Court.16. Section 28(1) of the Customs Act, after itunderwent amendment in 2011, reads thus:Where any duty has not been levied or not paid or hasbeen short-levied or short paid or erroneouslyrefunded, or any interest payable has not been paid,5/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021part-paid or erroneously refunded for any reason otherthan the rasons of collusion or any wilful mis-statement or suppression of facts.(a)The proper officer shall, within (two years) fromthe relevant date, serve notice on the personchargeable with the duty or interest which has notbeen so levied (or paid) or which has been short-levied or short-paid or to whom the refund haserroneously been made, requiring him to show cause whyhe should not pay the amount specified in the notice.(PROVIDED that before issuing notice, the properofficer shall hold pre-notice consultation with theperson chargeable with duty or interest in such manneras may be prescribed.)(b) The person chargeable with the duty or interest, may pay, before service of notice under clause (a) onthe basis of(i).His own ascertainment of such duty; or(ii).The duty ascertained by the proper officer, the amount of duty along with the interestpayable thereon under Section 28AA or the amountof interest which has not been so paid or part-paid: (PROVIDED) that the proper officer shall notserve such show cause notice, where the amountinvolved is less than rupees one hundred. 17. The word “The proper officer” has beenmentioned in Section 28(1)(a) of the Act, under which, only the proper officer shall initiate theproceedings by issuing Show Cause Notice. Here in thecase in hand, the Additional Director GeneralDirectorate of Revenue Intelligence, Chennaiadmittedly had issued Show Cause Notice dated17.03.2009 which ultimately culminated in the order-in-original dated 28.08.2014. Therefore, the factremains that, the initiation of the proceedings underSection 28(1) of the Act is only by the Directorate ofRevenue Intelligence official. 18. If the Directorate of Revenue Intelligenceofficial initiated proceedings under Section 28(1) ofthe Customs Act, whether that would stand in the legalscrutiny or get vitiated was the prime question posedbefore the Hon'ble Supreme Court in Canon India case.19. While considering the said issue, the Hon'bleSupreme Court has held as follows:6/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 20219. The question that arises is whether theDirectorate of Revenue Intelligence had authority inlaw to issue a show cause notice under Section 28(4)of the Act for recovery of duties allegedly not leviedor paid when the goods have been cleared for import bya Deputy Commissioner of Customs who decided that thegoods are exempted. It is necessary that the answermust flow from the power conferred by the statute i.e.under Section 28(4) of the Act. This Section empowersthe recovery of duty not paid, part paid orerroneously refunded by reason of collusion or anywilful mis-statement or suppression of facts andconfers the power of recovery on “the proper officer”.The obvious intention is to confer the power torecover such duties not on any proper officer but onlyon “the proper officer”. This Court in ConsolidatedCoffee Ltd. And Another vs. Coffee Board, Bangalore2has held:- “14. ...Secondly, and more importantly, the userof the definite article ‘the’ before the word‘agreement’ is, in our view, very significant. Parliament has not said ‘an agreement’ or ‘anyagreement’ for or in relation to such export and inthe context the expression ‘the agreement’ would referto that agreement which is implicit in the saleoccasioning the export.” In Shri Ishar Alloy SteelsLtd. vs. Jayaswals Neco Ltd. has held:-“9. ...’The’ is the word used before nouns, witha specifying or particularising effect as opposed tothe 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 thingor a person.” 1.There are only two articles ‘a (or an)’ and‘the’. `a (or an)’ is known as the IndefiniteArticle because it does not specifically refer toa particular person or thing. On the other hand,‘the’ is called the Definite Article because itpoints out and refers to a particular person orthing. There is no doubt that, if Parliamentintended that any proper officer could haveexercised power under Section 28 (4), it couldhave used the word ‘any’. It is obvious that the re-assessment andrecovery of duties i.e. contemplated by Section28(4) is by the same authority and not by anysuperior authority such as Appellate or7/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021Revisional Authority. It is, therefore, clear tous that the Additional Director General of DRIwas not “the” proper officer to exercise thepower under Section 28(4) and the initiation ofthe recovery proceedings in the present case iswithout any jurisdiction and liable to be setaside. At this stage, we must also examinewhether the Additional Director General of theDRI who issued the recovery notice under Section28(4) was even a proper officer. The AdditionalDirector General can be considered to be a properofficer only if it is shown that he was a Customsofficer under the Customs Act. In addition, thathe was entrusted with the functions of the properofficer under Section 6 of the Customs Act. TheAdditional Director General of the DRI can beconsidered to be a Customs officer only if he isshown to have been appointed as Customs officerunder the Customs Act.21. If it was intended that officers of theDirectorate of Revenue Intelligence who are officersof Central Government should be entrusted withfunctions of the Customs officers, it was imperativethat the Central Government should have done so inexercise of its power under Section 6 of the Act. Thereason why such a power is conferred on the CentralGovernment is obvious and that is because the CentralGovernment is the authority which appoints both theofficers of the Directorate of Revenue Intelligencewhich is set up under the Notification dated04.12.1957 issued by the Ministry of Finance andCustoms officers who, till 11.5.2002, were appointedby the Central Government. The notification whichpurports to entrust functions as proper officer underthe Customs Act has been issued by the Central Boardof Excise and Customs in exercise of non-existingpower under Section 2 (34) of the Customs Act. Thenotification is obviously invalid having been issuedby an authority which had no power to do so inpurported exercise of powers under a section whichdoes not confer any such power.23. We, therefore, hold that the entireproceeding in the present case initiated by theAdditional Director General of the DRI by issuing showcause notices in all the matters before us are invalidwithout any authority of law and liable to be set-aside and the ensuing demands are also set aside.20. After having analyzed the fact whether theDirectorate of Revenue Intelligence officials are8/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021proper officers under the provisions of the CustomsAct especially in the context of Section 28, theHon'ble Supreme Court has held that, the proceedingsin the said case initiated by the Additional DirectorGeneral Directorate of Revenue Intelligence, byissuing the Show Cause Notice was invalid and withoutany authority of law and the same therefore wasliable to be set aside.21. The subtle difference in this case is onlythe provision. Here, the Show Cause Notice was issuedunder Section 28(1) of the Customs Act and in thatcase, since in 2011 Section 28 of the Customs Actunderwent amendment under which Sub-section(4) wasinserted by which extended limitation has been madeand therefore in that case, under Sub Section (4) ofSection 28 such notice was issued. However, in thepresent case in hand, since it was in the year 2009i.e pre-amendment, notice was issued under Section 28(1) of the Act itself under the unamended sub section(1) of Section 28. Otherwise, the issue is one and thesame and factually the petitioners' case as well asthe Canon India case are similarly placed. 21. However when this decision of Canon Indiacase was brought to the notice of the learned Judge, who dealt with the batch of cases in Sri SathyaJewellery cited supra, the learned Judge in paragraphNo.6 of the judgment has taken the following view:6.The respective learned Senior Standing Counselsappearing on behalf of the respondents objected thesaid contentions by stating that the respondents havealready filed review petitions in Review Petition(Diary) Nos.9580, 9584, 9587, 9591 of 2021 before theHon'ble Supreme Court of India on 07.04.2021. Theircontention is that, certain notifications issued werenot brought to the notice of the Hon'ble Supreme Courtof India and further, it is a regular appeal filedafter exhausting the statutory remedies provided underthe Act, and the writ petitioners cannot rely on thesaid judgment in view of the fact that the petitionershave not exhausted the statutory appellate remedyprovided under Sections 128 and 129 of the CustomsAct. The case before the Hon'ble Supreme Court ofIndia was decided in regular appeal, and thus, theappellants had exhausted the appellate remedy providedunder the Act, whereas, the petitioners in these writpetitions have not exhausted the alternate remedy andthey have filed the writ petitions in order to avoid9/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021the Pre-Deposit as contemplated under the Statute. Therefore, the petitioners are not entitled for anyrelief.22. In fact this view expressed by the learnedJudge in Sathya Jewellery case, has been heavilyrelied upon by the learned Standing Counsel appearingfor the respondent Customs.23. The learned Judge in the said order has takenthe view that, in Canon India case thepetitioner/Appellants after having exhausted theappeal remedy had gone to the Supreme Court by way ofSpecial Leave Petition. However in the case in handbefore the learned Judge in Sathya Jewellery case, thepetitioners had come to the High Court as against theorder-in-original directly, therefore, the partiescould be relegated to approach the appellateauthorities.24. However, the learned counsel for thepetitioner in this context has relied upon a judgmentof the Karnataka High Court which is a recent onedated 14.07.2021 in the matter of Sri Mohan C.Suvarnareferred to above. In the said case extensiveconsideration have been made by the learned Judge ofthe Karnataka High Court, where, under the heading''applicability of judgment in M/s.Canon India case''the learned Judge has discussed the following:5) Applicability of judgment in M/s.Canon IndiaPrivate Limited: (i) It is to be noticed that thestarting point of the present proceedings relates tothe show cause notice dated 07.01.2008 which relatesto the period prior to 2011. Certain amendments weremade to the Customs Act, 1962 in 2011. Under Section28 of the Customs Act as was applicable during therelevant period of time, the power is vested in 'theproper officer' to take action where duty has not beenlevied or has been short-levied or erroneouslyrefunded and such proceedings was to be taken by 'theproper officer.' Subsequent to the amendment ofSection 28, 'the proper officer' still retainsjurisdiction, though there are certain proceduralmodifications.(ii) The aspect of who is 'the proper officer' asregards to Section 28 of the Customs Act prior to theamendment was considered by the Apex Court in the caseof Commissioner of Customs v. Sayed Ali and Anotherreported in (2011) 265 ELT . Subsequent to the10/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021judgment of Apex Court in Sayed Ali's case (supra),certain amendments were effected to the Customs Act, including the introduction of Section 28(11) insertedby the Customs (Amendment and Validation Act) 2011with effect from 16.09.2011 to the effect that ".....all persons appointed as officers of Customs undersub-section (1) of Section 4 .....shall be deemed tohave been and always had been the proper officers forthe purposes of this Section." The effect of suchamendments was considered by High Court of Delhi inthe case of Mangali Impex Ltd. v. Union of Indiareported in 2016 (335) E.L.T. 605 (Del.), which onceagain reiterated that the amendment does not in anyway alter the position insofar as the law laid down inSayed Ali's case (supra). The judgment of the DelhiHigh Court, it is stated is pending considerationbefore the Apex Court in S.L.P.(C) No.20453/2016,wherein the judgment in Mangali's case has beenstayed, by the Apex Court.(iii) It ought to be noted that the present judgmentof Apex Court in the case of M/s.Canon India PrivateLimited (supra) passed in Civil Appeal No.1827/2018and connected matters is a judgment by a Benchconsisting of Three Judges and has referred to thejudgment in Sayed Ali's case (supra) in approval.(iv) The Apex Court in the case of M/s.Canon IndiaPrivate Limited (supra) has specifically raised thequestion at para-9 of its decision, which reads asfollows:-"9. The question that arises is whether theDirectorate of Revenue Intelligence had authority inlaw to issue a show cause notice under Section 28(4)of the Act for recovery of duties allegedly not leviedor paid when the goods have been cleared for import bya Deputy Commissioner of Customs who decided that thegoods are exempted. It is necessary that the answermust flow from the power conferred by the statute i.e.under Section 28(4) of the Act. This Section empowersthe recovery of duty not paid, part paid orerroneously refunded by reason of collusion or anywilful mis-statement or suppression of facts andconfers the power of recovery on “the proper officer”.The obvious intention is to confer the power torecover such duties not on any proper officer but onlyon “the proper officer”. This Court in ConsolidatedCoffee Ltd. v. Coffee Board, Bangalore2 has held:—“14. …Secondly, and more importantly, the user of the11/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021definite article ‘the’ before the word ‘agreement’ is, in our view, very significant. Parliament has not said‘an agreement’ or ‘any agreement’ for or in relationto such export and in the context the expression ‘theagreement’ would refer to that agreement which isimplicit in the sale occasioning the export.”The Apex Court while referring to ' the properofficer' found in Section 28 has specifically recordeda finding that it is only 'the proper officer', and'that proper officer' alone can adjudicate the matter. Further Apex Court has clarified at para 15 asfollows:"15. ...... We find it completely impermissible toallow an officer, who has not passed the originalorder of assessment, to re-open the assessment on thegrounds that the duty was not paid/not levied, by theoriginal officer who had decided to clear the goodsand who was competent and authorised to make theassessment. The nature of the power conferred bySection 28(4) to recover duties which have escapedassessment is in the nature of an administrativereview of an act. The section must therefore beconstrued as conferring the power of such review onthe same officer or his successor or any other officerwho has been assigned the function of assessment. Inother words, an officer who did the assessment, couldonly undertake re-assessment [which is involved inSection 28(4)]."Accordingly, the Apex Court has held that Section musttherefore be construed as conferring the power of suchreview on the same officer or his successor or anyother officer who has been assigned the function ofassessment. In other words, an officer who did theassessment could only undertake the re-assessment[which is involved in Section 28(4)].(v) The Apex Court has also considered the aspect asto whether the Additional Director General of DRI whohas been appointed as an Officer of Customs has beenentrusted with the functions under Section 28 as 'theproper officer' under the Customs Act. The Court, after referring to the notification dated 02.05.2012at paras-19 and 20 has concluded that the notificationissued by the Central Board of Excise and Customs inexercise of power under Section 2(34) of the CustomsAct would not be sufficient, as the said Section doesnot confer any power on the Authority to entrust any12/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021functions of officer, and that Section 2(34) merelydefines who 'the proper officer' is.(vi) The Apex Court has specifically observed that itis only Section 6 of the Customs Act which providesfor entrustment of functions of Customs Officer onother officers of the Central or the State Governmentor local authority. At para-21 of the decision, it isspecifically observed that the Central Governmentought to have passed necessary orders under Section 6,if it was intended that officers of the Directorate ofRevenue Intelligence were to be entrusted with thefunctions of Customs Officer.(vii) The Apex Court has further clarified that thenotification which purports to entrust the functionsas 'proper officer' issued by the Central Board ofExcise and Customs in exercise of non-existing powerunder Section 2(34) of the Customs Act is invalid asalso having been issued by the Authority which has nopower to do so.(viii) Finally, the Apex Court after referring to theobservations in the case of Commissioner of Customs v.Sayed Ali and Another reported in (2011) 3 SCC 537 hasconcluded at para-24 as follows:-"24. We, therefore, hold that the entire proceeding inthe present case initiated by the Additional DirectorGeneral of the DRI by issuing show cause notices inall the matters before us are invalid without anyauthority of law and liable to be set-aside and theensuing demands are also set-aside".(ix) In the present case, applying the law laid downin the case of M/s.Canon India Private Limited (supra)clearly, the proceedings that have been initiated byissuance of a show cause notice dated 07.01.2008 bythe Additional Director General, DRI is also liable tobe set aside in light of the law laid down by the ApexCourt as referred to above.23. While judgment of High Court of Madras in the caseof Commissioner of Customs (Air) vs. M/s. PremierTours & Travels (Chennai) Pvt. Ltd. and another, inC.M.A. No.2746/2009 and M.P. No.1/2009 dated04.02.2021 where identical contentions were raised andthe consideration of such aspect has been relegated tobe decided in the appeal, however this Court does notfind any reason to take the same view, in light of theclear findings in the case of M/s.Canon India PrivateLimited (supra) which does not leave any scope for13/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021further adjudication and the law laid down by the ApexCourt ought to enure to the benefit of thepetitioners.24. It needs to be noted that the High Court of Madras(Madurai Bench) by order dated 16.03.2021 in the caseof Quantum Coal Energy Pvt. Ltd. vs. The Commissionerof Customs in W.P.(MD) Nos.10186 & 10187 of 2014 andM.P.(MD) Nos.1 & 1 of 2014 has taken a different standby setting aside the proceedings initiated by theCustoms Authority where the show cause notice wasissued by the Additional Director General of DRI whilereferring to the judgment in the case of M/s.CanonIndia Private Limited (supra) and this Court findsthat, that would be the only logical conclusion to bearrived at and to take any other stand would onlyresult in overreaching the decision of Apex Court, which is plainly impermissible.25. It is the submission made by learned AdditionalSolicitor General that Review Petition has been filedwhich was the stand taken by the authorities in theirstatement of objections filed on 07.04.2021. As thematter was posted on numerous occasions thereafter, there has been no further development in the reviewproceedings and it is submitted that the matter isstill pending consideration. Needless to state thatthere has to be finality once the law is laid down bya judgment of the Apex Court and any further defermentmay not be justified. Further, if the Review Petitionis disposed, the legal consequences would enure to thebenefit of the parties involved.26. Accordingly, the writ petitions are allowed. TheOrder-in-original Sl.No.BLR-CUSTM-AIR-003/16-17 dated27.02.2017 at Annexure-G in both the writ petitionsare set aside while holding specifically that the showcause notice at Annexure-B dated 07.01.2008 is onethat is not issued by 'the proper officer'. TheAuthorities are at liberty to take out freshproceedings as per law, in light of the discussion asabove.27. The oral request made by learned counsel appearingfor respondent No.2 to keep the order in abeyance isrefused, as the Court has passed the order on thebasis of the judgment of Apex Court in the case ofM/s.Canon India Private Limited vs. Commissioner ofCustoms reported in 2021 SCC Online SC 200, which isthe law as on date.14/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 202125. In the said decision, all thequeries/objections raised by the learned StandingCounsel appearing for the respondent Customs herein, including that, as against Canon India judgment, review has been field and by virtue of the amendmentmade in Section 28 by inserting Sub Section (11) theCustoms Authorities have every right to issue ShowCause Notice by any official, who can be treated as aproper officer, have been considered and answered.26. I am in respectful agreement with the viewtaken by the learned Judge of the Karnataka High Courtin the said case in Sri Mohan C.Suvarna cited supra.27. It is a settled preposition of law that, normally in tax matters, as against the order-in-original the writ petition would not be entertainedunless the appeal remedy is exhausted and the taxpayer/assessee has to approach the High Court onlythrough proper channel by filing an appeal against theorder passed by the appellate authority. However, there are exceptions to the general rule, where, underthree circumstances the writ petitions areentertained. In the first category, if the principleof natural justice is violated and in the secondcategory if there is any statutory violation and inthird category if for want of jurisdiction the orderpassed by the authorities concerned is vitiated.28. Here in the case in hand, though the saidplea of want of jurisdiction was raised there was noground at the time of filing the writ petitions in theyear 2018, however during the pendency of the writpetition law has developed and the Canon Indiajudgment has come in March 2021. After Canon India'sjudgment atleast two decisions of this Court as wellas the Karnataka High Court on the same point by therespective writ courts had been rendered, where, inthe judgment of the Karnata High Court referred toabove, this issue has been extensively discussed andby applying the ratio of Canon India judgment thelearned Judge allowed the writ petition stating thatthe proceedings initiated under Section 28 of theCustoms Act by any other officer other than a properofficer shall be vitiated, therefore, the entireproceedings was interfered with and set aside.15/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 202129. Therefore in this context, even though thelearned Standing Counsel appearing for the respondenthas raised the vehement contention that the ground ofwant of jurisdiction now canvassed by the petitionerin view of Canon India judgment was not available tothe petitioner either at the time of issuing ShowCause Notice or at the time of adjudication or passingof order-in-original even at the time of filing writpetition in 2018, cannot have a legal backing as thelaw declared by the Supreme Court in Canon India caseis only reiterating the law which is already availablein statute under Section 28 of the Customs Act longback. 30. More over the view expressed by the learnedJudge in Sathya Jewellery's case cited supra isconcerned, whether it is a direct writ petitionagainst order-in-original or writ petition or appealproceedings before this court after exhausting theappellate remedy, would not make a difference. Thewant of jurisdiction ground can very well be taken atany stage either at the first instance directly beforethis Court against the order-in-original or at finalstage after exhausting the appeal remedy. Therefore, such distinction which was trying to be made by thelearned Judge in Sri Sathya Jewellery case in myconsidered view, may not be available if we applyingthe principles laid down by the Supreme Court in Canoncase. In this regard, the view expressed by theKarnataka High Court in the said case of Shri MohanC.Suvarna cited supra can very well be pressed intoservice in order to meet these circumstances. 31. Therefore, looking from any angle, sinceadmittedly the Show Cause Notice dated 17.03.2009 wasissued by the Additional Director General ofDirectorate of Revenue Intelligence, Chennai whichculminated in the impuged order-in-original dated28.08.2014, the said proceedings would not stand inthe legal scrutiny and therefore, it is liable to beinterfered with.32.In the result, this Court is inclined to orderthese writ petitions with the following directions:The respective impugned orders and theconsequential impugned order, in all these writpetitions are quashed. In view of the same, it is opento the respondents to act upon in the manner known tolaw, especially under the provisions of Customs Act by16/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021taking into account the law laid down by the Hon'bleSupreme Court in Canon India case cited supra.33. In fine, these writ petitions are orderedaccordingly. However, there shall be no order as tocosts. Consequently, connected miscellaneous petitionsare closed.”17.Though a plea was raised by the Revenue side, that even inDeepak Gopaldas Bajaj batch case cited supra, as against the CanonIndia case dated 09.03.2021, the Revenue has filed review, thataspect also has been considered by the learned Judge of theKarnataka High Court in the judgment which has been taken note of inmy order dated 08.09.2021. Also, it is to be noted that, subsequentto Canon India case dated 09.03.2021, a similar issue came up beforethe Hon'ble Supreme Court in the case of Commissioner of Customs, Kandla Vs. M/s. Agarwal Metals and Alloys in Civil Appeal No.3411 of2020, where the Hon'ble Supreme Court by order dated 31.08.2021,has passed the following order:“Delay condoned.In view of decision dated 09.03.2021 of threejudge Bench of this Court in Civil Appeal No.1827 of2018 titled as “M/s.Canon India Private Ltd. VsCommissioner of Customs” reported in 2021 (3) SCALE748, these appeals must fail as the show cause notice(s) in the present cases was also issued by AdditionalDirector General (ADG), Directorate of RevenueIntelligence (DRI), who is not a proper officer withinthe meaning of section 28(4) read with section 2(34) ofthe Customs Act, 1962.Hence , these appeals stand dismissed. However, dismissal of these appeals will not comein the way of the competent authority to proceed in thematter in accordance with law. Pending application(s), if any, stand disposedof.” 18.Therefore, by the very latest order dated 31.08.2021, theprinciple laid down by the Hon'ble Supreme Court in Canon India casehas once again been taken note of and followed, based on which theappeal filed by the Customs was rejected in the said Civil Appeal. Therefore, the consistent view taken by the Hon'ble Supreme Courtinsofar as the law having been declared in Canon India case makes itvery clear that, as on date, insofar as the proceedings initiated byany other officer other than the proper officer is vitiated, especially, if those proceedings were initiated prior to 2011 ie.,pre-amendment of Section 28. 17/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 202119.When that being so, merely because the Revenue had filedbelated appeal as against the CESTAT order dated 03.01.2018, itwould not preclude the petitioner to raise the point of want ofjurisdiction, as it goes to the root of matter, when thejurisdiction itself is questioned and the said point is to beanswered in favour of the noticee, the question of deciding theadjudicatory process on merits does not arise. Therefore, the saidobjection as projected by the learned Standing Counsel for theCustoms stating that the appeal filed by it since is pending in SRstage, the petitioner cannot file these writ petitions, taking theground of want of jurisdiction, cannot be countenanced.20.In view of the aforesaid decisions and the reasons stated, this Court has no hesitation to hold that the petitioner is entitledto succeed in these writ petitions.21.In the result, the following orders are passed in these writpetitions:“The impugned show cause notice dated 06.12.2012is quashed. As a sequel, the petitioner would beentitled to get back the amount and the bankguarantee, if any deposited during the investigation. However, it is made clear that the quashment of theshow casue notice dated 06.12.2012, will not precludedthe respondents to act in accordance with law, if theyare advised to do so.”22.With the above observations and directions, these writpetitions are allowed to the terms indicated above. However thereshall be no order as to costs. Consequently, connected miscellaneouspetitions are closed. Sd/-Assistant Registrar (CS-I)// True Copy // / /2021Sub Assistant Registrar(CS)MRNote :In view of the present lock down owing to COVID-19 pandemic,a web copy of the order may be utilized for officialpurposes, but, ensuring that the copy of the order that ispresented is the correct copy, shall be the responsibilityof the advocate/litigant concerned.18/19 https://hcservices.ecourts.gov.in/hcservices/ WP(MD)Nos.8574, 8579 & 8581 of 2021To1.The Commissioner of Customs Custom House, Tuticorin 628 004.2.The Additional Director General, Directorate of Revenue Intelligence, Chennai Zonal Unit, No.27, Adarsh Towers, G.N. (Chetty) Road, T.Nagar, Chennai-600 017.Common Order made inW.P.(MD)Nos.8574, 8579 & 8581 of 2021Dated:30.09.2021SE(CO)GC(21.12.2021) 19P 3C 19/19