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2018 (7) TMI 794 - HC - CustomsValidity of SCN - Jurisdiction - proper officer - authorization u/s 2(34) - power of Additional Director of Directorate of Revenue Intelligence to invoke the provisions of Section 124 of the Customs Act, 1962 - whether the Additional Director of Directorate of Revenue Intelligence has the jurisdiction to invoke Section 124 of the Act of 1962 or not? Held that:- Section 2(34) of the Act of 1962 defines a proper officer. A proper officer, in relation to any function to be performed under the Act of 1962 means the officer of Customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs. Section 4 of the Act of 1962 empowers the Board to appoint persons as officers of Customs. It allows the Board to authorize a Principle Chief Commissioner or Chief Commissioner of Customs or a Joint or Assistant or Deputy Commissioner of Customs to appoint officers of Customs below the rank of Assistant Commissioner of Customs. Section 6 of the Act of 1962 allows the Central Government to entrust the functions of the Board or any officer of the Customs on any officer of the Central or State Government or a local authority, either conditionally or unconditionally. Section 152 of the Act of 1962 allows the Central Government to delegate the powers exercisable by the Board, Commissioner of Customs, Joint or Assistant Commissioner of Customs on the persons specified therein. Section 2(34) of the Act of 1962 mandates that, an officer of the Customs must be duly authorised, either by the Board or the Commissioner of Customs to discharge a function under the Act of 1962. In absence of such authorization by the Board or the Commissioner of Customs under the Act of 1962, no officer can discharge any function under the Act of 1962 which he is not authorised to discharge. An appointee under Section 4 of the Act of 1962 requires an authorization under Section 2(34) to be considered as proper officer to discharge the functions of a Customs Officer. An employee other than of Customs, entrusted with the discharge of functions under the Act of 1962 would also require an authorization under Section 2(34) to be considered as a proper officer entitled to discharge functions under the Act of 1962 - The notification No. 31/97- Customs (N.T.) dated July 7, 1997 and notification No. 17/2002, Customs (N.T.) dated March 7, 2002 are exercise of powers under Section 4 of the Act of 1962. It is not an exercise of power under Section 2(34) of the Act of 1962. The personnel of Directorate of Revenue Intelligence named in such notifications have not been authorised to discharge any functions under the Act of 1962 by a conferment of authorization by the Board or the Commissioner of Customs exercising powers under Section 2(34) of the Act of 1962. The circular No. 4/99-Cus. dated February 15, 1999 is also not an exercise of powers under Section 2(34) of the Act of 1962. There is no notification on record authorizing an Additional Director of Directorate of Revenue Intelligence, under Section 2(34) of the Act of 1962 to discharge the functions of a proper officer under Section 124 of the Act of 1962. An authorization under Section 2(34) of the Act of 1962 is sine quo non for any officer of Customs or any officer entrusted under Section 6 of the Act of 1962. As the scheme of the Act of 1962 stands, an officer of Customs has to be authorised under Section 2(34) of the Act of 1962 to discharge the functions entrusted. An officer other than a Customs officer, entrusted under Section 6 of the Act of 1962, needs an authorization under Section 2(34) to be considered as proper officer authorized to discharge the functions of a Customs officer under the Act of 1962. Additional Director of Directorate of Revenue Intelligence is not entitled to invoke Section 124 of the Customs Act, 1962. The impugned show-cause notices are quashed as being without jurisdiction.
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