Page 179 - ELT_1st September 2020_Vol 373_Part 5

2020 ] MENKA GAMBHIR v. UNION OF INDIA 617

8. Mr. S. Ghosh, Ld. Counsel appearing for the petitioner Menka Gam-
bhir submits that the officer issuing summons must be conducting inquiry. From
a bare perusal of the summons it would unequivocally appear that, the entire
process involved in issuance of the summons is contrary to the strict drill pre-
scribed under Section 108 inasmuch as :
(a) the person issuing the summons has been directed to issue the
summons (by his superior officer i.e. the Commissioner).
(b) the summons has not been issued owing to the person (who issued
the summons) himself conducting the purported investigation; in-
stead the investigation was being sought to be carried out by his
superior officer.
(c) the person issuing the summons has not formed an opinion himself
that it is necessary for the petitioner to attend the summons.
(d) instead such opinion appears to be that of the superior officer (i.e.
the Commissioner).
(e) the attendance of the petitioner is required before another officer
and not the person issuing the summons or even the person that
had directed that the summons be issued (i.e. the Commissioner).
In response, the Customs has had no cogent answer apart from stat-
ing that : (a) compliance of Section 108 is an administrative act and there-
fore statute need not be strictly followed; and (b) Section 5(2) of the Cus-
toms Act purportedly empowers senior officers to usurp the role of the
junior officer. The aforesaid arguments are incorrect and are mere red
herrings for the following reasoning :
(a) Sections 5(2) of the Act has no applicability to the instant
case, since it is not the case of the petitioner that a senior of-
ficer (for example the Commissioner of Customs) could not
have issued the summons. It is the petitioner’s case that 3 dif-
ferent officers could not be involved in the issuance of the
summons, i.e. (i) Manish Chandra (Commissioner of Cus-
toms) who has formed an opinion and considers its neces-
sary to summon the petitioner; (ii) Rahul Mahato (Joint
Commissioner of Customs) who has issued the summons
under dictation/direction; and (iii) Additional Commission-
er of Customs (Airport & Admin), Customs House before
whom the petitioner has been summoned.
(b) Even if a senior officer takes up the responsibility to issue
such summons, he has to perform all acts himself as contem-
plated under Section 108 and such a senior cannot partly ex-
ercise certain aspects of 108 leaving the rest upon other offic-
ers.
(c) Section 5(2) does not allow an officer, who having taken over
the powers of his subordinate (to issue summons), thereafter,
abdicates or delegates such power to a third officer. In the in-
stant case, the superior officer had taken over the power to
issue summons, having formed the necessary opinion to car-
ry out investigation, then he could not have delegated the
investigation per se to a third person who is a subordinate of-
ficer.
EXCISE LAW TIMES  1st September 2020  179