Case Note & Summary
The petitioner, Sunil Gupta, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging a show cause notice dated 5.2.2009 issued by the Directorate of Revenue Intelligence (DRI). The petitioner contended that the officer who issued the notice was not a 'proper officer' under Section 2(34) of the Customs Act, 1962, and therefore the notice and all subsequent adjudication proceedings were void ab initio. The petitioner also challenged the retrospective amendment to Section 28 of the Customs Act, 1962, which inserted clause (11) retrospectively validating all show cause notices issued by officers of Customs, including DRI, before 6.7.2011. Additionally, the petitioner challenged a circular dated 23.9.2011 issued by the Central Board of Excise and Customs (CBEC) directing authorities to treat such notices as valid. The respondents, Union of India and others, defended the notice and the amendment, arguing that the amendment was a valid retrospective legislation intended to cure any defect in the authority of officers. The court, after hearing arguments, held that the retrospective amendment to Section 28(11) was constitutional and valid, and therefore the show cause notice and the circular were also valid. The court dismissed the petition, upholding the validity of the notice and the amendment.
Headnote
A) Customs Law - Proper Officer - Show Cause Notice - Section 2(34), Section 28, Section 17, Customs Act, 1962 - The petitioner challenged a show cause notice issued by an officer of DRI on the ground that he was not a 'proper officer' under Section 2(34) of the Customs Act, 1962. The court held that the retrospective amendment to Section 28(11) retrospectively validated all show cause notices issued by officers of DRI and similar authorities, and therefore the notice was valid. (Paras 1-28) B) Constitutional Law - Retrospective Legislation - Validity - Articles 14, 19, 21 of Constitution of India - The petitioner argued that the retrospective amendment to Section 28(11) was ultra vires and unconstitutional. The court held that the amendment was a valid piece of retrospective legislation intended to cure defects and was not violative of fundamental rights. (Paras 29-40) C) Customs Law - Circular - Validity - Section 28(11), Customs Act, 1962 - The petitioner challenged a circular issued pursuant to the amendment. The court held that since the amendment was valid, the circular based on it was also valid. (Paras 41-45)
Issue of Consideration
Whether the show cause notice issued by an officer of DRI is valid when such officer is not a 'proper officer' under Section 2(34) of the Customs Act, 1962, and whether the retrospective amendment to Section 28(11) validating such notices is constitutional.
Final Decision
The Bombay High Court dismissed the writ petition, upholding the validity of the show cause notice, the retrospective amendment to Section 28(11) of the Customs Act, 1962, and the circular dated 23.9.2011.
Law Points
- Proper officer under Section 2(34) of Customs Act
- 1962
- Retrospective amendment to Section 28(11) validating show cause notices
- Circular issued pursuant to amendment is valid
- No violation of Articles 14
- 19
- 21 of Constitution.
