TMI Blog2021 (10) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Director General, DRI, Ludhiana is not a proper Officer to issue Show Cause Notice under Section 28 (4) read with Section 2 (34) of Customs Act, 1962 - appeal allowed - decided in favor of appellant. - Customs Appeal No. 61392 of 2019 [DB] - FINAL ORDER No. 60923/2021 - Dated:- 5-10-2021 - MR.ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Saurabh Kapoor, Advocate for the Appellant Shri M.S. Dhindsa, Authorised Representative for the Respondent ORDER This appeal filed by the appellant is against the order passed by Commissioner, Customs, Ludhiana wherein Show Cause Notice has been issued by Additional Director General, DRI, Ludhiana. 2. The learned Counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice. Therefore, issue before us to decide as under:- Whether Additional Director General, DRI, Ludhiana is having jurisdiction to issue Show Cause Notice under Section 28 (4) read with Section 2 (34) of Customs Act, 1962 or not. 6. The said issue has been dealt by the Hon ble Apex Court in the case of Canon India P. Ltd. (supra) wherein the Hon ble Apex Court held as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Commissioner or Joint Commissioner of Customs (i) Sub-section (5) of section 46; and (ii) Section 149 3. Deputy Commissioner or Assistant Commissioner of Customs and Central Excise (i) . (ii) .. (iii) .. (iv) .. (v) .. (vi) ..Section 28; 19 . It appears that a Deputy Commissioner or Assistant Commissioner of Customs has been entrusted with the functions under Section 28, vide Sl. No. 3 above. By reason of the fact that the functions are assigned to officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 4-12-1957 issued by the Ministry of Finance and Customs officers who, till 11-5-2002, were appointed by the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that : 28. Notice for payment of duties, interest, etc. (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may, - (a) in the case of any 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer . 19. Section 2(34) of the Act defines a proper officer , thus : 2. Definitions. 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 of Customs; It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be proper officers in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer . 20. From a conjoint reading of Sections 2(34) and 28 of the Act, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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