TMI Blog2016 (5) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... osed under Section 112 of the Customs Act, 1962 in the Order-in-Original No. 135/92 dt. 4.8.1992. 2. The fact of the case is that a show cause notice dt. 28.8.1991 was issued to M/s. Orient Arts and Crafts, wherein the appellant, among others, was also one of the noticees. The charge in the show cause notice was that M/s. Orient Art and Crafts in collusion with the present appellant imported duty free goods under Import Passbook Scheme and diverted the same to local market thus defrauding the Government of its legitimate revenue of Customs duty to the tune of ₹ 39,99,930/- and conspires by preparing bogus transport documents to show dispatch to factory at Bhadohi, but in fact were sold in the local market by the appellant Shri Pravinchandra B. Shah with the assistance of Shri Kushabhau B.Bangar of M/s. New Bright Services and M/s. Super Roadlines, in contravention of the provisions of Import Export Policy 1988-91 and also in violation of provisions of Customs Act, 1962. The show cause notice was adjudicated vide Order-in-Original No. 135/92 dt. 4.8.1992 whereby the goods were confiscated, demand confirmed and penalty of ₹ 4 lakhs was imposed on the appellant apart fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oicee i.e. M/s. Orient Arts and Crafts. However, no fresh show cause notice was issued to the present appellant. It is his submission that even though in the proceedings of M/s. Orient Arts and Crafts the same show cause notice was quashed and department was given liberty to issue fresh show cause notice therefore show cause notice dt. 28.8.1991 became nonest. Hence, on this ground the appeal deserves to be allowed. Alternatively, he submits that even in the second show cause notice dt. 4.4.1994 issued by the department to M/s. Orient Arts and Crafts the proceeding was concluded by this Tribunal order in the case of M/s. Orient Arts and Crafts Vs. Commissioner of Customs (P) Mumbai 2003 (155) ELT 168 (Tri.-Mumbai) wherein the entire duty penalty and confiscation was dropped. This decision of the Tribunal was upheld by the Hon ble Bomaby High Court by dismissing the Revenues appeal as reported in 2012 (282) ELT A108 (Bom). The entire demand of duty, penalty and confiscation has been dropped against the main party i.e. M/s. Orient Arts Crafts . The present appellant on whom only penalty under Section 112 of the Act was imposed as a consequential to the case of demand of duty. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under :- I find that in the show cause notice, the demand has been raised under Section 28 of the Customs Act, 1962. Although Section 28 is not mentioned in show cause notice. The fact remains that duty demanded under Customs Act, 1962, and under Customs Act there is Section 28 only to demand duty. Section 28 pertains to issue of notice for demand of duties not levied, short-levied, or erroneously refunded. State in brief, the position prior to 14th May, 1992 was that the show cause notice itself for the extended period the period more than six months can be issued only by the proper officer and the proper officer in view of the clear wording of Section 28 was the Collector of Customs. In the instant case, the show cause notice has been issued by the Asstt. Collector. The proper officer to issue the show cause notice during the relevant period was the Collector of Customs and not the Asstt. Collector. The Asstt. Collector could have issued the show cause notice if the short-levy or non-levy was within six months. In the instant case the show cause notice has been issued after six months of the relevant date. As the show cause notice is issued after six months after the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not hold the same, following the said decision. A proceeding continued on basis of an invalid notice is bad ab initio. (b) The appellants have taken the plea questing the jurisdiction of Collector of Customs (Preventive), Mumbai to issue demands as proper officer and to determine the assessments on the Bills of Entry, which have been filed and for the consignments covered by the same were pending clearance in Docks but which were seized by Officers of the Marine and Preventive Wing of the Collector of Customs (Preventive), Mumbai. They have relied on the following case laws : (i) Manohar Bros. (CACITORS) v. Collector of Customs-II, Bombay [1998 (98) E.L.T. 821] (ii) Sharad Himatlal Daftary v. Collector of Customs [1988 (36) E.L.T. 468 (Cal.)] (iii) Informatika Software v. CC (P), Calcutta [1997 (73) ECR 348 (Tribunal)] (iv) Ramnarain Biswanath v. UOI [1988 (34) E.L.T. 202 (S.C.)] (v) Canepo Textiles Pvt. Ltd. v. State of Haryana [1992 (84) STC 88] (vi) Grand Slam International v. Collector of Customs [1992 (57) E.L.T. 161 (Tribunal)] (vii) CCE v. Poona Rollers [1997 (89) E.L.T. 604] (viii) Shri Balaji Rice Mills Co. v. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable to the present case. Shri K Srinivasan, Consultant has also cited the cases of M/s. Metro Exports, 1988 (14) ECR 169, M/s. M.K. Fisheries, 1989 (41) E.L.T. 408, M/s. Ramnarayan Vishwanath, 1988 (34) E.L.T. 202, I find that the issue decided by the Honble Tribunal in those cases is clearly distinguishable with the factual position in this case. While those cases involved issues where the cases were sought to be decided by Commissioners other than the Commissioner in whose jurisdiction the goods were cleared in the present case the Commissioner (Prev.) is specially vested. These catene of decisions relied upon by the appellants lead us to conclude that determination of demand of duty under Section 28 of the Customs Act, 1962 is not made by the proper officer as per law, same therefore is not upheld. We also rely on the decision in the case of Pune Rollers as reported in 1997 (89) E.L.T. 604 and M/s. Bakemans Home Products Pvt. Ltd. v. CC as reported in 1997 (95) E.L.T. 278 to hold the demands to be not determined by the proper officer for the goods cleared and also for the goods under clearance covered by the Bills of Entry, which were yet to be assessed. (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asion Squad Officer, issued notice to the petitioners to finalise the assessment against them. The jurisdiction of this Anti-Evasion Squad Officer was challenged. The Punjab and Haryana High Court, while upholding the authority of the Notification granting concurrent parallel jurisdiction to Anti-Evasion Squad to make assessments, recorded the following propositions of the law - Under the Act, the District Excise and Taxation Officer-cum-Assessing Authority would have jurisdiction to make the assessment. In case the State Government issues a. notification in exercise of the powers conferred by section 3 and clause (a) of section 2 of the Act, the officer so appointed shall also have the jurisdiction to frame the assessment. 3.In case any one of the aforesaid two officers starts the assessment proceedings, the other officer shall not be entitled to start the same and the moment the officer who started the proceedings; later on get the information that the proceedings have already been started by the other officer, he will have to stay his hands. However, the authority named in Rule 7 will have the jurisdiction to transfer the pending proceedings to the other officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Bills of Entry. In the proceedings of the assessment on the pending Bills of Entry, the proper officer of Customs under the Collector of Customs, Mumbai can take such material as would be relevant, to assess those imports. The liability for penalty and orders for confiscation of the goods imported as covered by these Bills of Entry are required to be set aside. The appellants will similarly be free to make such submissions before the proper officer of Commissionerate of Customs, Mumbai where the Bills of Entry have been filed and who is to assess them. 3.In view of our above findings, duty demands and penalty set aside. Bills of Entry pending assessment to be assessed by the proper officer. Appeal is disposed of in the above terms. From the above decision, it can be seen that even after issuance of the second show cause notice, the show cause notice was held invalid accordingly demand of duty, penalty and confiscation was set aside. Since in the present proceedings, the only issue is of penalty under Section 112 of the Customs Act, 1962 which can be imposed only for confiscation of goods and dealing with goods which are liable for confiscation, that means the penalty is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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