TMI Blog2021 (3) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper officer . The obvious intention is to confer the power to recover such duties not on any proper officer but only on the proper officer . There are only two articles a (or an) and the . `A (or an) is known as the Indefinite Article because it does not specifically refer to a particular person or thing. On the other hand, the is called the Definite Article because it points out and refers to a particular person or thing. There is no doubt that, if Parliament intended that any proper officer could have exercised power under Section 28 (4), it could have used the word any - Parliament has employed the article the not accidently but with the intention to designate the proper officer who had assessed the goods at the time of clearance. It must be clarified that the proper officer need not be the very officer who cleared the goods but may be his successor in office or any other officer authorised to exercise the powers within the same office. In this case, anyone authorised from the Appraisal Group. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer - cameras with similar specifications have been treated as exempted under the Explanatory Note to the Combined Nomenclature of the European communities. It is important to add that the same cameras have been considered to be eligible for exemption before 17.03.2012 and after 30.04.2015 under the exemption Notifications issued under the Customs Act read with Chapter 84 85 (First Schedule) of Customs Tariff Act, 1975. Appeal allowed - decided in favor of appellant. - CIVIL APPEAL NO.1827 OF 2018 CIVIL APPEAL NO. 1875 OF 2018 WITH CIVIL APPEAL NO.1832 OF 2018 WITH CIVIL APPEAL NO.3213 OF 2018 - - - Dated:- 9-3-2021 - CJI. S. A. BOBDE, JUSTICE A. S. BOPANNA AND JUSTICE V. RAMASUBRAMANIAN For the Appellant : Mr. V. Lakshmikumaran, Adv. Mr. S. Vasudevan, Adv. Mr. Dhruv Matta, Adv. Mr. L. Badri Narayanan, Adv. Ms. Charanya Lakshmikumaran, AOR Mr. Aditya Bhattacharya, Adv. Mr. Sachin Mishra, Adv. Ms. Apeksha Mehta, Adv. Ms. Mounica Kasturi, Adv. Mr. Udita Singh, AOR For the Respondent : Mr. B. V. Balaram Das, AOR Mr. B. Krishna Prasad, AOR JUDGMENT S. A. BOBDE, CJI. 1. This batch of statutory appeals (being Civil Appeal Nos. 1827/2018, 1875/2018, 183 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under Section 28 (4) of the Customs Act, 1962 1 alleging that the Customs Authorities had been induced to clear the cameras by wilful mis-statement and suppression of facts about the cameras. In particular; that the cameras were capable of recording more than a single video sequence of less than 30 minutes. In other words, after one sequence of less than 30 minutes was recorded, the camera had sufficient memory (extendable) to record more such sequences. 8. It is significant to note that while the decision to clear the goods for import because they were exempted from customs duties under Notification No.15/2012, was taken by Deputy Commissioner, Appraisal Group, Delhi Air Cargo, the show cause notice was issued by the Additional Director General, Directorate of Revenue Intelligence. 9. The question that arises is whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2 (2) (c) of the Customs Act, 1962 4 . 12. The nature of the power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import, is broadly a power to review the earlier decision of assessment. Such a power is not inherent in any authority. Indeed, it has been conferred by Section 28 and other related provisions. The power has been so conferred specifically on the proper officer which must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods i.e. the Deputy Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods. 13. Where the statute confers the same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment, the power to order re-assessment mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown to have been appointed as Customs officer under the Customs Act. 17. Shri Sanjay Jain, learned Additional Solicitor General, relied on a Notification No.17/2002 - Customs (NT) dated 7.3.2002 to show all Additional Directors General of the DRI have been appointed as Commissioners of Customs. At the relevant time, the Central Government was the appropriate authority to issue such a notification. This notification shows that all Additional Directors General, mentioned in Column (2), are appointed as Commissioners of Customs. 18. The next step is to see whether an Additional Director General of the DRI who has been appointed as an officer of Customs, under the notification dated 7.3.2002, has been entrusted with the functions under Section 28 as a proper officer under the Customs Act. In support of the contention that he has been so entrusted with the functions of a proper officer under Section 28 of the Customs Act, Shri Sanjay Jain, learned Additional Solicitor General relied on a Notification No.40/2012 dated 2.5.2012 issued by the Central Board of Excise and Customs. The notification confers various functions referred to in Column (3) of the notification under the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it reads as follows:- 2. Definitions In this Act, unless the context otherwise requires, - (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 [Principal Commissioner of Customs or Commissioner of Customs]. 20. Section 6 is the only Section which provides for entrustment of functions of Customs officer on other officers of the Central or the State Government or local authority, it reads as follows:- 6. Entrustment of functions of Board and customs officers on certain other officers The Central Government may, by notification in the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under this Act. 21. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so shortlevied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression 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. 18. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice must be issued within five years from the relevant date which means the date on which the goods were assessed and cleared, in case the duty was not paid or short paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts. It is, therefore, necessary for us to examine whether there is suppression of facts. 25. The case was presented for scrutiny of the Customs officers on 20.3.2012 along with the Bill of Entry and literature consisting of specifications of the cameras. 26. The Bill of Entry made a statement that these are Digital Still Image Video Camera packed for retail sale (COOLPIX S4300, S2600 etc.). This was supported by literature which clearly stated that the single maximum recording time for a single movie is 29 minutes, even when there is sufficient free space on the memory card for longer recording . This meant that even if the camera could record more than 29 minutes when it had sufficient free space (which depends on the capacity of the card providing extended memory) the maximum time for which it could record a single sequence was 29 minutes. 27. In other words, the camera could record more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their own costs. FOOT NOTE 1 Section 28 (4) Where any duty has not been [levied or not paid or has been shortlevied or short-paid] or erroneously refunded, or interest payable has not been paid, partpaid or erroneously refunded, by reason of, - (a) collusion; or (b) any wilful mis-statement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been [so levied or not paid] or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. 4 Section 2. Definitions In this Act, unless the context otherwise requires, - (2) assessment means determination of the dutiability of any goods and the amount of duty, tax, cess or any other sum so payable, if any, under this Act or under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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