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2016 (9) TMI 928 - CESTAT ALLAHABAD

2016 (9) TMI 928 - CESTAT ALLAHABAD - TMI - Jurisdiction to issue show cause notice - proper officer - confiscation under Section 11(l)(m) & (d) of the Customs Act - imposition of penalties - bank guarantee of ₹ 2 lakhs submitted at the time of provisional release, appropriated towards reduction fine of equal amount - mis-declaration of goods - lighting fixture - Section 28(1)(b) read with Section 124 of the Customs Act, 1962 - Held that: - the decision in the case Mangali Impex Ltd. Vs. U .....

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p; Shri Kumar VikrAm, Advocates for the Appellant Shri M. K. Mall Asstt. Commissioner, (A.R.) for the Department ORDER Per Mr. Anil Choudhary The appellant has preferred the present appeal against Order-in-Appeal dated 31.05.2007 passed by Commissioner (Appeals) Central Excise, Kanpur. 2. The brief facts are that a show cause notice was issued on 04.07.2006, under Section 28(1)(b) read with Section 124 of the Customs Act, alleging that the goods declared as lighting fixture imported by the appel .....

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,159.71/-. The goods in question which were seized post clearance, were held confiscated under Section 11(l)(m) & (d) of the Customs Act and the bank guarantee of ₹ 2 lakhs submitted at the time of provisional release, was appropriated towards reduction fine of equal amount. A penalty with ₹ 3 Lakhs was imposed on Pramod Agencies under Section 14(A) read with Section 112(a) of the Customs Act. Further, penalty of ₹ 2 lakhs was imposed on Pramod Goel, proprietor of M/s Pramo .....

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under Section 28 of the Customs Act, for issuing notice or show cause. It is further contended that the proper officer under Section 28 is an officer, who has investigated with the power of assessment/re-assessment under Section 17 of the Customs Act. Accordingly, the whole show cause notice is vitiated for want of jurisdiction. The learned Counsel relies on the ruling of Hon ble Delhi High Court in the case of batch of writ petitions being Mangali Impex Ltd. Vs. Union of India & others pro .....

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) of the Act prior to 6th July 2011 shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers 2. Section 28(11) of the Act states that the provision would take effect notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority. However, this amendment adversely impacts the petitioners herein in that it seeks to validate the show-c .....

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h July, 2011. 6. Hon ble High Court after considering the issue at length, have considered the effect of Section 28(11) of the Customs Act, introduced vide Customs (Amendment and Validation) Act, 2011 with effect from 08.04.2011. The Hon ble High Court have observed as follows:- 66. The mere fact that Section 28(11) has been given retrospective effect does not solve the essential problem pinted out by the Supreme Court in the Sayed Ali case, which is the absence of the assigning of functions to .....

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er officers only for the purposes of new Section 28 of the Act and not the earlier Section 28 of the Act. In particular, there is no validation of the SCNs issued prior to the amendment of Section 28 of the Act. As observed in Delhi Cloth & General Mills Co. Ltd. Vs. State of Rajasthan (Supra), a legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. The past actions of the officers of the DRI and DGCEI who are not designated as proper officer in issu .....

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the proper officer for the purposes of Section 28(11) of the Act. As further explained in Shri Ishar Alloys Steels Ltd. Vs. Jayaswals Neco Ltd. (supra), the article the always denotes a particular thing or person. 69. The Court also finds merit in the contention that if jurisdiction is exercised by one officer of the Customs or of the DRI or DGCEI, it should impliedly oust the jurisdiction of other officers over the same subject matter. The doctrine of comity of jurisdiction requires that for t .....

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ent cannot seek to rely upon Section 28(11) of the Act as authorizing the officers of the Customs, DRI, the DGCEI etc. to exercise powers in relation to non-levy, short-levy or erroneous refund for a period prior to 8th April 2011 if, in fact, there was no proper assigning of the functions of reassessment or assessment in favour of such officers who issued such SCNs since they were not proper officers for the purposes of Section 2(34) of the Act and further because Explanation 2 to Section 28 as .....

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ial and subject matter jurisdiction and in such event the provision would be vulnerable to being declared unconstitutional. 70.3 As regards the period subsequent to 8th April 2011, it is evident that if the administrative chaos as envisaged by the Supreme Court in Sayed Ali (supra) should not come about, there cannot be any duplicating and/or overlapping of jurisdiction of the officers. It would have to be ensure through proper co-ordination and administrative instructions issued by the CBEC tha .....

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