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2022 (4) TMI 315 - AT - CustomsJurisdiction - power of Additional Director General DRI to issue SCN - proper officer under section 28 of the Customs Act to issue the notice, or not - Mis-declaration of description of goods - under-valuation of goods - whether the Additional Director General, DRI had the jurisdiction to issue the notice? - HELD THAT:- This precise issue was examined by the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT]. The Supreme Court observed that the nature of the power to recover the duty not paid or short paid after the goods have been assessed and cleared for import is a power that has been conferred to review the earlier decision for assessment. This power which has been conferred under section 28 of the Customs Act on the proper officer, must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods. Thus, the Additional Director General, DRI did not have the jurisdiction to issue the show cause notice. It would thus be seen that the Supreme Court in Canon India held that the entire proceedings initiated by the Additional Director General, DRI by issuance of a show cause notice was without any authority of law and was, therefore, liable to be set aside - Various Benches of the Tribunal have also set aside the orders for the reason that the show cause notices were not issued by the proper officer, since they were issued by the Department of Revenue and Intelligence. Thus, the show cause notice dated 01.09.2017 issued by the Additional Director General, DRI is, therefore, without jurisdiction as the said officer was not the proper officer and, therefore all proceedings undertaken by the Department on this show cause notice is, therefore, without jurisdiction. The order dated 29.03.2019 passed by the Commissioner of Customs (Import), therefore, cannot be sustained. A Division Bench of the Tribunal in M/S BERIWALA IMPEX PVT. LTD. VERSUS COMMR. OF CUSTOMS (PORT) , KOLKATA [2022 (3) TMI 120 - CESTAT KOLKATA], also examined the proposed amendments to section 2(34), 3, 5 of the Customs Act and introduction of the new section 110AA in the Customs Act and held that the impugned order emanating from a show cause notice issued under section 28 of the Customs Act by the Additional Director General DRI cannot be sustained. The order passed by the Principal Commissioner cannot be sustained and it is set aside - Appeal allowed - decided in favor of appellant.
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