TMI Blog2021 (11) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... Canon India was subsequently followed by the Supreme Court in Agarwal Metals and Alloys [ 2021 (9) TMI 316 - SUPREME COURT] . The show cause notice dated 30.01.2009 issued by the Additional Director General, DRI is, therefore, without jurisdiction as the said officer was not the proper officer and, therefore all proceedings undertaken by the Department on this show cause notice is, therefore, without jurisdiction. - The order passed by the Commissioner of Customs (Adjudication), therefore, cannot be sustained. Confiscation of the goods under section 111 and imposition of penalty under section 112 of the Customs Act - HELD THAT:- In Bakeman s Home Products [ 1997 (6) TMI 178 - CEGAT, NEW DELHI] , the Tribunal held that the proposal for confiscation and penalty cannot be segregated from duty demand and, therefore, the proceedings for confiscation and imposition of penalty cannot be sustained. Order set aside - Decided against the Revenue. - Customs Appeal No. 893 of 2012 - FINAL ORDER NO. A/87107/2021 - Dated:- 9-11-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Anil Balani, Advocate for the Appellant Shri Manoj Das, Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred under section 28 of the Customs Act on the proper officer, must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods. Thus, the Additional Director General, DRI did not have the jurisdiction to issue the show cause notice. The observations of the Supreme Court are as follows: 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. 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 sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly if it is shown that he was a Customs officer under the Customs Act. In addition, that he was entrusted with the functions of the proper officer under Section 6 of the Customs Act. The Additional Director General of the DRI can be considered to be a Customs officer only if he is shown to have been appointed as Customs officer under the Customs Act. xxxxxxxxxx 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 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch decision. The show cause notice in the present case is also issued by the respondent No.2 - Joint Director, DRI, Mumbai, who is not a proper officer within the meaning of Section 28(4) read with Section 2 (34) of the said Act. xxxxxxxxx 12. In the light of the decisions of the Hon ble Supreme Court referred to herein above, we have no hesitation in holding that the entire proceedings in the present case initiated by the respondent No. 2 - Joint Director, DRI, Mumbai, by issuing the show cause notice are invalid, without any authority of law and liable to be set aside and ensuing demands are also liable to be set aside. 10. The Madras High Court in Quantum Coal Energy (P) Ltd. vs. The Commissioner, Office of the Commissioner of Customs, Custom House, Tuticorin [2021 (3) TMI 1034- Madras High Court ] observed as follows: 6. When the matter was taken up for hearing, the learned counsel appearing for the petitioner submitted that the issue is no longer res integra and that the Hon'ble Supreme Court in M/s. Canon India Private Limited V. Commissioner of Customs (2021-VIL-34-SC-CU) had held that the expression the proper officer occurring in Section 28 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this show cause notice is, therefore, without jurisdiction. The order dated 31.05.2012 passed by the Commissioner of Customs (Adjudication), therefore, cannot be sustained. 15. The submission advanced by the learned authorised representative appearing for the Department that the hearing of this appeal should be deferred till the review petition filed by the Department in Canon India is decided was considered by the Karnataka High Court in Mohan C. Suvarna and rejected. 16. Learned authorised representative appearing for the Department, however submitted that the notice was also issued under section 124 of the Customs Act for confiscation of the goods under section 111 and imposition of penalty under section 112 of the Customs Act and, therefore, the order to this extent is not bad in law. 17. Learned counsel appearing for the appellant, however placed reliance upon a decision of the Tribunal in Bakeman s Home Products Pvt. Ltd. vs. Collector of Cus., Bombay [1997 (95) E.L.T. 278 (Tribunal) ] and contended that the proposal for confiscation of goods and imposition of penalty cannot be segregated from the duty demand and, therefore, if the duty demand fails as the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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