Power to issue Show Cause Notices in Customs - Board's Instructions
IN terms of the Hon'ble Supreme Court order in Civil Appeals Nos. 4294-4295 of 2002 along with C.A. Nos. 4603-4604 of 2005 = , only such Customs officer who has been assigned the specific functions of assessment and re-assessment of duty in the jurisdictional area where the import concerned has been effected, by either the Board or the Commissioner of Customs, in terms of Section 2 (34) of the Act is competent to issue notice under section 28 of the Act.
The Supreme Court in its judgement has also observed that these judgements shall not preclude the revenue from initiating any proceedings against the importers for recovery of duty and other charges payable in respect of subject goods, if permissible under the Act.
In view of the Supreme Court order, while other alternative measures are being considered to address the matter, it has been decided by the Board that henceforth all Show Cause Notices under Section 28 of the Customs Act, 1962 in respect of cases investigated DRI/Customs Preventive formations are required to be issued by jurisdictional Commissioners from where imports have taken place.
Board also desires the field formations to examine the pending show cause notices and wherever the cases are not hit by limitation, show cause notices may be got issued afresh by jurisdictional Commissionerates in supersession of the earlier show cause notices and in the light of the Hon'ble Supreme Court judgement in the matter.
As for the cases which would be hit by limitation if notices are issued afresh now, necessary legal options are being explored.
It is really unfortunate that after years of running this administration, the Department is not sure as to who should issue Show Cause Notices. CBEC in Circular No. 23/2009–Customs dated 01.09.2009, had clarified that, “In so far as the issuance of Show Cause Notice for demand of duty under Section 28 is concerned, the same can be issued by the respective adjudicating officers depending upon the powers of adjudication ”.
But somehow the DRI/DGCEI has no faith in the Show Cause Notice making power of the Commissioners. So they invariably issue the notices and ask jurisdictional Commissioners to adjudicate those cases with the arrogant belief that no Commissioner will ever have the guts to drop a case booked by DRI. Quite often the Board itself assigns the show cause notices issued by DRI/DGCEI to different adjudicating authorities across the country.
Now several cases may simply go out of the window, just because the Show Cause Notice was issued by an Authority not competent to issue the notice.
CBEC Instruction Dated: April 15, 2011