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"INSTRUCTION F.NO.276/104/2016-CX.8A (PT.) INCLUSION OF SHOW CAUSE NOTICES ISSUED IN RELATION TO SECTION 28(11) OF CUSTOMS ACT, 1962 ON COMPETENCY OF OFFICERS OF DGDRI, DGCEI AND CUSTOMS (PREV.), IN CALL BOOK INSTRUCTION F.NO.276/104/2016-CX.8A (PT.), DATED 29-6- The Hon'ble High Court of Delhi vide the order dated 3-5-2016 in the case of Mangali Impex Ltd. in WP No. 441/2013 and others held that sub-section (11) of section 28 of the Customs Act, 1962 cannot validate SCNs or proceedings pursuant thereto in relation to non- levy, short-levy or erroneous refund for the period prior to 8th April 2011, if such SCNs have been issued or proceedings conducted by officers of the Customs, DGDRI or DGCEI or as in the present case by the SIIB, who are not 'proper officers' within the meaning of sub- section (34) of section 2 of the Act.

2. In this regard it may be mentioned that the amendment in section 28 (11) of the Customs Act, 1962 was brought out by the Government, after the decision of Supreme Court in Commissioner of Customs v. Sayed Ali (2011) 3 SCC 537, wherein it was held that Customs Preventive Officers are not proper officers to issue Show Cause Notice u/s 28 of Customs Act, 1962. Vide Notification No.44/2011, dated 6-7-2011, Board assigned the functions of proper Officers to the officers of DGDRI, DGCEI and Preventive. Further, in the Statement of Facts and Reasons to the Customs (Amendment and Validation), Bill, 2011, while introducing sub-section 11 of section 28 of the customs Act,1962, the then FM had expressly mentioned that it has purposed to amend the Customs Act, 1962 retrospectively. Thus, the intention of Legislature was clearly spelt out. Therefore, the officers of DGDRI, DGCEI and Preventive are Proper Officers even for the Show Cause Notices issued prior to issuance of Notification dated 6-7-2011. Since the order dated 3-5- 2016 of High Court of Delhi challenges the constitutional validity of sub-section (11) of section 28 of the Customs Act, 1962, the Board has decided to file an SLP in the case i.e. W.P. No. 441/2013 before the Hon'ble Supreme Court.

3. In view of the above, field formations are requested to transfer all the SCNs issued by DRI, DGCEI, SIIB, Preventive prior to 6-7-2011 and which are pending adjudication to the Call Book, till disposal of the matter in the Supreme Court.