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TMI Blog2022 (1) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... he Principal Commissioner of Customs, ACC (import) [Principal Commissioner] by which part of demand has been confirmed and part of demand has been dropped. 2. Customs Appeal No. 50949 of 2020 has been filed by Sunil Kumar Sharma, Senior Manager- Finance and Accounts of M/s Toyota Material Handling India Private Limited against the imposition of penalty by the aforesaid order dated May 29, 2020. 3. Customs Appeal No. 51136 of 2020 has been filed by the Principal Commissioner of Customs against that part of the order by which demand has been dropped. 4. It has been submitted by Shri B.L. Narasimhan, learned counsel appearing for the appellant that the Principal Additional Director General, DRI did not have the jurisdiction to issue the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid/not levied, by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28 (4) to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake re-assessment [which is involved in Section 28 (4). 15. It is obvious that the re-assessment and recovery of duties i.e. contemplated by Section 28(4) is by the same authority and not by any superi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1957 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Director of Revenue Intelligence. 11. 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 hes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision of the Supreme Court in Canon India, set aside the order for the reason that the show cause notice had not been issued by the proper officer. 14. The Punjab and Haryana High Court in M/s. Steelman Industries vs. Union of India and Others [2021 (8) TMI 1236- Punjab and Haryana High Court] also, in view of the decision of the Supreme Court in Canon India, allowed the Writ Petition and set aside the entire proceedings arising from the show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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