TMI Blog2021 (12) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal allowed - decided in favor of appellant. - CUSTOMS APPEAL NO. 50374 of 2021 - FINAL ORDER NO. 52065/2021 - Dated:- 6-12-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Ms. Vibha Narang, Advocate for the Appellant Shri Sunil Kumar, Authorized Representative of the Department ORDER This appeal has been filed by M/s. Ajanta Overseas [ the appellant ] to assail the order dated 03.12.2020 passed by the Commissioner of Customs (Appeals), by which the appeal filed by the appellant has been dismissed but the appeal filed by the department has been partially allowed. It needs to be noted that the demand raised in the show cause notice dated 29.03.2018 issued by the Additional Director General, Directorate of Revenue and Intelligence [ Additional Director General, DRI ], New Delhi, under sections 28 of the Customs Act 1962 [ the Customs Act ] was confirmed by the Additional Commissioner by order dated 18.03.2019. 2. It has been submitted by Ms. Vibha Narang, learned counsel appearing for the appellant that the Additional Director General, DRI did not have the jurisdiction to issue the show cause notice as he was not the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute. 14. It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone. As in this case, when the statute directs that the proper officer can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. We find it completely impermissible to allow an officer, who has not passed the original order of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, 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 Customs in exercise of non-existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power. xxxxxxxx 23. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set- aside. (emphasis supplied) 6. It would thus be seen that the Supreme Court in Canon India held that the entire proceedings initiated by the Additional Director General, DRI by issuance of a show cause notice was without any authority of law and was, therefore, liable to be set aside. 7. The aforesaid decision of the Supreme Court in Canon India was subsequently followed by the Supreme Court in Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs Act will only refer to the assessing officer who passes the original order making assessment. xxxxxxxx 7. In the case also, the show cause notice was issued by the Additional Director General of DRI. The Hon'ble Supreme Court had held that he cannot be termed as the proper officer . Since the entire proceedings were initiated by an authority who lacked the jurisdiction, applying the aforesaid decision of the Hon'ble Supreme Court the order impugned in these writ petitions is quashed. 11. The Karnataka High Court in Shri Mohan C. Suvarna Director (Finance and Admin) M/s Givaudan India Pvt. Ltd. vs. The Principal Commissioner of Customs, Additional Director General Directorate of Revenue Intelligence, Bangalore [ 2021 (8) TMI 178- Karnataka High Court] did not accept the plea of the Department that since the review petition had been filed by the Department in Canon India, the hearing should be adjourned and in view of the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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