TMI Blog2021 (11) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... e was without any authority of law and was, therefore, liable to be set aside. Confiscation - penalty - HELD THAT:- In BAKEMAN S HOME PRODUCTS PVT. LTD. VERSUS COLLECTOR OF CUS., BOMBAY [ 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. The order dated 29.03.2019 passed by the Commissioner of Customs (Import) cannot be sustained and is set aside - Appeal allowed. - C/51570 & 51571/2019 - FINAL ORDER NO. 51942-51943/2021 - Dated:- 15-11-2021 - MR. JUSTICE DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri B.L.Narasimhan, Advocate for the Appellant Shri Sunil Kumar, Authorized Representative of the Department ORDER Customs Appeal No. 51570 of 2019 has been filed by Ms. Schweitzer Engineering Laboratories Pvt Ltd. [the appellant ] to assail the order dated 29.03.2019 passed by the Commissioner of Customs (Import), by which the demand of differential customs duty has been confirmed by invoking the extended period of limitation contemplated under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Director General, DRI had the jurisdiction to issue the notice. This precise issue was examined by the Supreme Court in Canon India. The Supreme Court observed that 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 a power that has been conferred to review the earlier decision for assessment. This power which has been conferred 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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise the power under Section 28(4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside. 16. At this stage, we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 28(4) was even a proper officer. The Additional Director General can be considered to be a proper officer only 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 Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were issued by the Director of Revenue Intelligence. 10. The Bombay High Court in Kitchen Essentials Ors. vs. The Union of India Ors. [2021 (10) TMI 1267-Bombay High Court] observed as follows: 10. Having gone through the decision of the Hon ble Supreme Court in the case of M/s. Canon India Private Limited (supra), we find that the issue raised in the present writ petition is squarely covered by such 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. 11. The Madras High Court in Quantum Coal Energy (P) Ltd. vs. The Commissioner, Office of the Commissioner of Customs, Custom House, Tuticorin [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aport-Export) [ 2021 (9) TMI 636- CESTAT Chennai ]; and (iii) M/s. Modern Insecticides Limited vs. Commissioner of Customs, Ludhiana [ 2021 (10) TMI 598- CESTAT Chandigarh ] (iv) Dhiren Enterprise vs. Commissioner of Customs (Adjudication) [ Customs Appeal No. 893 of 2012 decided on 09.11.2021 ] 15. The show cause notice dated 01.09.2017 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 dated 29.03.2019 passed by the Commissioner of Customs (Import), therefore, cannot be sustained. 16. 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. 17. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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