MARCH 18, 2021

By R K Singh

IN the wake of the Supreme Court's order dated 9th March 2021 in the case of Canon India - 2021-TIOL-123-SC-CUS-LB that DRI cannot issue show cause notice under s. 28(4) of the Customs Act 1962 thereby rendering all such show cause notices liable to be quashed in limine, Central Board of Indirect Taxation and Customs (CBIC) has, yesterday, issued a fiat in the form of letter F No. 450/72/2021-Cus-IV to DRI that such a show cause notice "for the present and until further directions be kept pending".

2. Some of the ramifications of CBIC fiat are as under:

(i) It implies that the quasi-judicial authorities can be directed as to when to adjudicate and when not to. Thus, the independence of the quasi-judicial authorities goes for a six. Indeed, it can form a reasonable basis for approaching the Constitutional courts for taking away the adjudicatory functions from the Customs officers to maintain the sanctity of the adjudication process.

(ii) It also thumbs the nose to Supreme Court that its orders, law of the land as they are, can be thwarted by the Executive by simply directing the quasi-judicial officers not to implement them and by keeping the related matters pending indefinitely.

(iii) At a more fundamental level, CBIC has arrogated to itself the power to put on hold the justice delivery, a power which even Supreme Court will demur to claim to possess.

3. In this unseemly development, even a moment's thought does not seem to have been spared to the taxpayer's plight as to why it should be deprived of timely justice delivery even after the issue stands decided by the highest court. Strange are the ways of bureaucracy, stranger of Indian bureaucracy.

4. Fortunately, the Constitutional courts are not bound by CBIC fiats. If a taxpayer approaches the Constitutional Court for quashing a DRI notice citing the Canon judgement, in all likelihood, the Hon'ble court will oblige even before the Counsel is able to adjust his collar to address the court.

[The author is former Member CESTAT and Sr Partner, TLC Legal Advocates. The views expressed are strictly personal.]