UNION OF INDIA Vs. DHARAMPAL SATYAPAL

JUDGEMENT

(1.) This writ petition under Article 226/ 227 of the Constitution of India has been filed by the Union of India, through the Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi and the Assistant Director (Investigation), Directorate General of Central Excise Intelligence, West Block-VII Wing No.VI, Second Floor, R. K. Puram, New Delhi as petitioner Nos.1 & 2 respectively for issuance of a writ of certiorari or any other order or direction in the nature of a writ quashing and setting aside the majority opinion of the Customs and Central Excise Settlement Commission (Principal Bench, New Delhi) in its order dated 12.03.2012 and for upholding the minority opinion expressed therein, and for issuance of any other directions or orders deemed fit and proper, in favour of the petitioners.

(2.) A preliminary point was raised in the course of the hearing of the writ petition to the effect that the Assistant Director (Investigation) who is petitioner No.2, has no locus standi to challenge the order of the Settlement Commission as he is only an investigative authority without any power of assessment. The learned Additional Solicitor General, purporting to meet the point filed a copy of the Circular No.44/2011-CUS dated 23.09.2011 and submitted that the petitioner No.2 came within the scope of the circular and was authorised to file the writ petition jointly with the Union of India. A perusal of the circular shows that consequent to the judgment of the Supreme Court on 18.02.2011 in Civil Appeal Nos.4294-4295/2002, 2603/2005 and 4604/2005 in the case of Sayed Ali, 2011 265 ELT 17, an amendment to Section 28 of the Customs Act, 1962 was made w. e. f. 16.09.2011 by insertion of clause (11) which reads as follows: -

(3.) The effect of the amendment is that the Assistant Director (Investigation) who is an officer of the DGCEI was retrospectively recognized w. e. f. 06.07.2011 as a "proper officer" for the purposes of Sections 17 and 28 of the Customs Act, 1962. The circular in paragraph 5, however, goes on to say that the officers of the DRI and DGCEI "shall not exercise authority in terms of clause (8) of section 28; in other words, the circular says that there shall be no change in the present practice and officers of the DRI and DGCEI shall not adjudicate the show-cause notices issued under Section 28 of the said Act."