Page 175 - ELT_1st September 2020_Vol 373_Part 5

2020 ] MENKA GAMBHIR v. UNION OF INDIA 613

(1) Any gazetted officer of customs duly empowered by the
Central Government in this behalf shall have power to summon
any person whose attendance he considers necessary either to
give evidence or to produce a document or any other thing in
any inquiry which such officer is making under this Act. ...”
Thus the necessary elements of a valid summons under Section 108
are : (a) a gazetted officer must conduct the inquiry himself; (b) the same
officer must consider the attendance of the summoned necessary; and (c)
the attendance must be before the same officer.
From a bare perusal of the summons dated 26th March, 2019, it
would unequivocally appear that (a) the persons issuing the summons
has been directed to issue the summons and the summons is not issued
because the said person is himself conducting the purported investiga-
tion; (b) the person issuing the summons has not formed an opinion
himself that it is necessary for the petitioner to attend the summons (c)
the attendance of the petitioner is required before another officer and not
the person issuing the summons. According to the Ld. Senior Counsel,
the Customs has had no cogent answer apart from; (a) compliance of Sec-
tion 108 is an administrative act and therefore statute need not be strictly
followed and (b) Section 5(2) of the Customs Act purportedly empowers
senior officer to usurp the role of the junior officer. The aforesaid argu-
ments are incorrect and are mere red-herrings. Firstly, Section 5(2) of the
Act has no applicability to the instant case, since it is not the case of the
petitioner that a senior officer (for example the Commissioner of Cus-
toms) could not have issued the summons. It is the petitioner’s case that
3 different officers could not be involved in the issuance of the summons,
i.e. (i) Manish Chandra (Commissioner of Customs) who has formed an
opinion and considers its necessary to summon the petitioner; (ii) Rahul
Mahato (Joint Commissioner of Customs) who has issued the summons;
and (iii) Additional Commissioner of Customs (Airport & Admin), Cus-
toms House before whom the petitioner has been summoned. Even as-
suming that a Senior Officer takes up the responsibility to issue such
summons he has to perform all acts himself as contemplated under Sec-
tion 108 and such a senior cannot partly exercise certain aspects of 108
leaving the rest upon other officer. In other words, such summons could
have been issued by an officer who was superior in rank to Manish
Chandra. Further, Section 108(4) clearly mandates that proceedings un-
der this Section are judicial in nature and therefore no question arises of
issuance of summons being a mere administrative act that need not
comply with statute. Issuance of summons is not merely an administra-
tive act and is a quasi-judicial act by itself.
Mr. Mukherjee, Ld. Senior Counsel further submits that in order to
bolster their case that the Summons is concerning penalty under Section
117 of the Act, the Customs has falsely relied on Section 26 of the General
Clauses Act. This reliance is completely misplaced and illegal. Section 26
of General Clauses Act states that when the act constitutes an offence
under two or more enactments, then it can be proceeded with simultane-
ously. However, Sections 117 and 133 are of the same Act and therefore
such argument hold no water. Similarly, the customs has erroneously re-
lied on Section 4(2) of the Cr.P.C. There is no doubt that the customs has

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