SUNIL GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) By this Writ Petition, under Article 226 of the Constitution of India, the Petitioner is seeking following reliefs:

(2.) The background, in which these reliefs are sought, is that the Petitioner was served with a show cause notice by the Directorate of Revenue Intelligence. This was pursuant to an investigation which was conducted. We are not concerned in this case with the fundamental rights guaranteed to the Petitioner under Article 21 of the Constitution of India. We are concerned in this case with a adjudication and which is subject matter of the Customs Act, 1962. This show cause notice, copy of which has been annexed to the Writ Petition, alleges that the Petitioner has been associated with the firms which are styled as dummy firms. During the course of investigation, it was revealed that certain goods were imported in the names of these firms. They have been misdeclared in terms of description, quantity and value. The goods were seized. Then, there is reference to six more similar consignments, which were lying at the Air Cargo Complex, Sahar, Mumbai and it has been revealed that these consignments and those earlier imported were brought in without compliance with the Customs Act, 1962. There are serious violations alleged and of this enactment.

(3.) The learned Counsel appearing on behalf of the Petitioner has confined his arguments only to the legality and validity of sub section (11) of section 28 of the Customs Act, 1962. It is urged that this section is ultra vires the Customs Act, 1962, as the same fails to take note of the Explanation 2. In other words, it is submitted that section 28 enables recovery of duty not levied or short levied or erroneously refunded. Sub section (11) thereof has been inserted by Act 14 of 2011 w.e.f. 16th September, 2011. That states that notwithstanding anything to the contrary contained in any Judgment, Decree or Order of any Court of law, Tribunal or other authority, all persons appointed as officers of Customs under sub section (1) of section 4 before 6th July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purpose of this section.