TMI Blog2022 (1) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the appeal filed by M/s. Mining Machinery Service, the learned counsel for the appellant has submitted that the proprietor of the firm is no more and produced the death certificate dated 17 th July 2020. Therefore, the appeal filed stands abated in terms of Rule 22 of the CESTAT (Procedure) Rules, 1982. The Show Cause Notice having been issued by DRI are ab initio void - Appeal allowed - decided in favor of appellant. - Customs Appeal No.41803 of 2015, 42416 of 2015-42417 of 2015 - Final Order Nos. 40002-40004/2022 - Dated:- 27-1-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri P. Anjani Kumar, Member (Technical) Shri B.V. Kumar, Advocate for the Appellant No. 1 Shri Y. Sreenivasa Reddy, Advocate for Appellants No. 2 3 Shri R. Rajaraman, AC (AR) for the Respondent ORDER Brief facts are that M/s. Sree Krishna Enterprises is a proprietary firm of which Shri S. Raghavendra is the Proprietor. They are importers of Tungsten Carbide Tips and TC Rock Drill Bits from China. On specific intelligence gathered by the Directorate of Revenue Intelligence (DRI), Hyderabad Regional Unit that M/s. Sree Krishna Enterprises was resorting to gross under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me in Quantum Coal Energy P. Ltd. Vs. CC, Tuticorin reported in 2021 (377) ELT 488 (Mad.). The Hon'ble High Court of Delhi in a writ petition filed by Rani Enterprises Vs. Principal Commissioner of Customs, Patparganj in W.P. (C) No. 11721/2021 decided on 12.10.2021 observed that the decision of the Hon'ble Supreme Court has to be followed. He prayed that the appeal may be allowed. No arguments on merits were advanced by the counsel for the appellant. 4. The learned counsel Shri Y. Sreenivasa Reddy appeared in the appeals filed by Shri S. Raghavendra as well as M/s. Mining Machinery Service. Separate Show Cause Notice dated 30.7.2014 was issued to M/s. Mining Machinery Service consequent to the very same investigations carried out. Searches were carried out in the office premises of M/s. Mining Machinery Service as well as the residential premises of late T.V. Srinivasan, Proprietor of M/s. Mining Machinery Service. He submitted that the proprietor is no more and therefore the appeal filed by him stands abated in terms of Rule 22 of CESTAT (Procedure) Rules, 1982. He adopted the arguments advanced by learned counsel Shri B.V. Kumar in respect of the issue with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation of export. The Learned Counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival submissions, 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 six months, from the relevant date, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. 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. 7. The learned counsel has placed the decision of the Hon'ble High Court of Delhi in the case of Rani Enterprises reported in 2021 TIOL 2257. The Hon'ble High Court while granting interim relief has observed as under:- 8. It is rather unfortunate that despite a clear enunciation and pronouncement of the law on the aspect of Proper Officer under section 110 of the Customs Act, 1962, the concerned officials of the Respondents are repeatedly seizing goods without having the authority and ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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