TMI Blog2011 (2) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Collectorate of Customs (Imports) or the Preventive Collectorate, would be "proper officers". In our view therefore, it is only the officers of customs, who are assigned the functions of assessment, which of course, would include re-assessment, working under the jurisdictional Collectorate within whose jurisdiction the bills of entry or baggage declarations had been filed and the consignments had been cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Act. - 4294-4295 of 2002 and 4603-4604 of 2005 - - - Dated:- 18-2-2011 - D.K. Jain and H.L. Dattu, JJ JUDGMENT D.K. Jain, J Challenge in these civil appeals, filed under Section 130E of the Customs Act, 1962 (for short the Act ), is to the orders dated 1st October, 2001 [2003 (159) E.L.T. 235 (Tri. - Mumbai)] and 4th January, 2005 [2005 (184) E.L.T. 198 (Tri. - Mumbai)] passed by the Customs, Excise Gold (Control) Appellate Tribunal (for short the CEGAT ) and the Customs, Excise Service Tax Appellate Tribunal (for short the CESTAT ) respectively. In the first set of appeals (Nos. 4294-4295 of 2002), the CEGAT has held that the Commissioner of Customs (Preventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the jurisdiction of the Collector of Customs (Preventive) was questioned on the ground that the jurisdiction of a Commissioner by virtue of Notification No. 251/83 being more specific and limited in nature, the said notification will prevail over Notification No. 250/83. Vide order dated 19th August, 1996, the Collector of Customs (Preventive) rejected the objections regarding his jurisdiction, holding thus : It is not disputed by the parties that by virtue of notification No. 250/83 the Commissioner of Customs (Preventive) Mumbai is appointed as Commissioner of Customs in the areas comprising Districts of Mumbai, Thane and Kolaba and a concurrent jurisdiction is thus vested in respect of Mumbai port also. What is being contended is that the jurisdiction of commissioner of customs, Mumbai under Notification No. 251/83 is more specific and limited. In this regard it is relevant to refer to the definition of smuggling under the provisions of customs Act, 1962. Under the Act Smuggling is defined as any act or omission which renders the goods to confiscation under the provisions of the Act. In this case M/s. handloom carpet manufacturer (sic) are charged with trafficking of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 28 of the Act. For the sake of convenience, hereinafter, both the CESTAT and CEGAT are referred to as the Tribunal . 9. Mr. Harish Chander, learned senior counsel appearing on behalf of the Revenue in one set of appeals, contended that once the Commissioner (Preventive) had been appointed as Collector of Customs (Preventive), Bombay by virtue of the Notification Nos. 250/83 and 251/83, issued by the Central Government under Section 4 of the Act, the former became proper officer in terms of Section 2(34) of the Act, and was competent to issue notice under Section 28 of the Act as the goods were cleared for home consumption in Bombay. In support of the proposition that an officer of Customs who has been assigned certain functions, which are to be performed under the Act is a proper officer and such assignment can be done by the Board or the Commissioner of Customs, reliance was placed on the decision of this court in Union of India Ors. v. Ram Narain Bishwanath Ors. - (1998) 9 SCO 285 = 1997 (96) E.L.T. 224 (S.C.) as also on a Larger Bench decision of the Tribunal in Konia Trading Co. (supra) and another decision of the Tribunal in Manohar Bros. (Capacitors) v. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Gouri Shankar - (1974) 3 SCC 230. 11. Explaining the procedure for clearance of imported goods for home consumption, learned counsel submitted that the Act clearly delineates the functions to be performed by the Commissioner of Customs (Imports) and the Commissioner (Preventive). According to the learned counsel under Section 30 of the Act, the owner of a vessel, on arrival or prior to arrival, is required to file an Import General Manifest ( IGM ) with the proper officer i.e. the Commissioner of Customs (Imports), the Rummaging and Intelligence Wing of the Preventive Division checks the conveyance to ensure that all goods in the vessel are mentioned in the IGM; then, in terms of Section 31 of the Act, an order allowing entry inwards is granted by the proper officer, i.e. Commissioner of Customs (Imports); the goods are unloaded under the supervision of the Preventive Officer in terms of Section 34; and then, the importer files a bill of entry, which is assessed by the proper officer i.e. Commissioner (Imports) who, on payment of all duties by the importer, issues an order allowing clearance of goods for home consumption under Section 47 of the Act. It was thus, asserted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months , the words five years were substituted. It is plain from the provision that the proper officer being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the proper officer . 13. Section 2(34) of the Act defines a proper officer , thus : 2. Definitions. - (34) proper officer , in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs (Imports) Mumbai, the same having been assessed and clearance for home consumption having been allowed by the proper officer on importers executing bond, undertaking the obligation of export, in our opinion, the Collector of Customs (Preventive), not being a proper officer within the meaning of Section 2(34) of the Act, was not competent to issue show cause notice for re-assessment under Section 28 of the Act. Nothing has been brought on record to show that the Collector of Customs (Preventive), who had issued the show cause notices was assigned the functions under Section 28 of the Act as proper officer either by the Board or the Collector/Commissioner of Customs. We are convinced that Notifications No. 250-Cus. and 251-Cus., both dated 27th August, 1983, issued by the Central Government in exercise of the powers conferred by sub-section (1) of the Section 4 of the Act, appointing Collector of Customs (Preventive) etc. to be the Collector of Customs for Bombay, Thane and Kolaba Districts in the State of Maharashtra did not ipso facto confer jurisdiction on him to exercise power entrusted to the proper officers for the purpose of Section 28 of the Act. In that view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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