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2022 (11) TMI 651 - HC - CustomsAppeal before the Tribunal - Under Customs Act or Central Excise Act - Scope of the order passed by proper officer - demand in respect of import of goods at concessional rate of duty - specific case of the petitioner in the present writ petition is that the order passed by the Appellate Tribunal was erroneous inasmuch as an Officer of the Central Excise Department was a Officer of the Customs under notification issued under Section 4(i) of the Customs Act, 1962 - HELD THAT:- Two show cause notices came to be issued by the Commissioner of Central Excise, Chennai III, Commissionerate within whose jurisdiction to the third respondent has its factory to demand the customs duty in terms of Rule 8 of Customs (Import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996 - it is only the "Central Excise Officer" as defined Section 2(b) of the Central Excise Act, 1944 and not a "Proper Officer" as defind in Section 2(34) of the Customs Act, 1962 who is empowered to demand duty payable by the third respondent to recover duty under Section 28 of the Customs Act, 1962. Show Cause Notices dated 11.02.2001 and 18.02.2002 seeking to recover the customs duty together with interest thereon issued by the second respondent Commissioner of Central Excise, Chennai III, Commissionerate was within the four corners of law - the second respondent Commissioner of Central Excise, Chennai III, was also competent authority to decide and pass order on the improts made by the petitioner under the resepctive customs notification in terms of Rule 8 of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Since the order was passed by the second respondent, Commissioner of Central Excise, Chennai III, appeal was only to be filed before the Tribunal in Form AE-3 under Section 35(B) of the Central Excise Act, 1944 and not under Section 129(A) of the Customs Act, 1962. Therefore, the Customs Appeal filed by the petitioner in C/104/03/MAS against an order passed by the Commissioner of Central Excise, Chennai III was not proper - The second respondent Commissioner of Central Excise, Chennai III ought to have filed an appeal against final order No.1409 of 2007 dated 31.10.2007 of the first respondent, Appellate Tribnal under Section 35 G of the Central Excise Act, 1944. Petition dismissed.
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