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2022 (3) TMI 121 - AT - CustomsJurisdiction - competence of ADG DRI to issue the SCN - Valuation of imported goods - 4-colour and 5-colour offset printers - rejection of the declared value of the imported goods - demand of differential duty along with interest - levy of penalties and personal penalties - HELD THAT:- Learned Counsel was correct in pointing out that in Canon India [2021 (3) TMI 384 - SUPREME COURT] Hon’ble Supreme Court had held that officers of DRI are not proper officers to issue the SCN demanding duty under section 28 as per section 2(34). Learned departmental representative was correct in pointing out that under consideration in Canon India was the question whether DRI officers were ‘proper officers’ under section 2(34) and not whether they were proper officers under section 28(11). As per section 28(11), all persons appointed as Customs officers under section 4(1) prior to 6th July 2011 were proper officers for assessment under section 17 and proper officers under section 28. This provision was not in question in Canon India but it was upheld in Mangali Impex (prospectively) [2016 (5) TMI 225 - DELHI HIGH COURT] and Sunil Gupta [2014 (12) TMI 151 - BOMBAY HIGH COURT]. We are not aware of any other judgment of any High Court or Supreme Court setting aside the validity of Section 28(11). Thus, section 28(11) is valid and is on the statute book. Undisputedly, in this case, since the assessment was done by the assessing officers in the Custom House, such officer who did the assessment or his successor in office is the proper officer and ADG DRI cannot be the proper officer and has no jurisdiction to issue the SCN demanding duty under section 28. Other person appointed as Customs officers under section 4(1) may be a proper officer by virtue of Section 28(11) but he/she must also be ‘the proper officer’, i.e., he/she must have had done the original assessment under section 17 in that case to be competent to issue an SCN under section 28 - as far as DRI officers is concerned, since the Government has not entrusted any functions under section 6 of the Customs Act, they could not have performed such functions. Therefore, all the functions of the officers of DRI under the Customs Act in this case which culminated in the issue of the SCN viz., searches, summons, recording of statements under the Customs Act are also vitiated. Therefore, neither those activities of officers of DRI under the Customs Act nor the SCN into which they culminated can be upheld. The impugned order cannot be sustained because it is issued adjudicating the SCN dated 22.5.2014 issued by ADG, DRI who is not competent to issue the SCN as per Canon India. Further, the SCN itself was the culmination of investigations including searches, seizures, and recording of statements under the Customs Act by the DRI officers and DRI officers have no jurisdiction to perform any functions under the Customs Act Canon India. Appeal allowed - decided in favor of appellant.
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