TMI Blog2022 (2) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... n Mangali Impex. Thus, after the amendment, there are several proper officers‟ under section 17 with respect to the same type of goods imported through the same port/ airport/land customs station such as the assessing officer of the Appraising Group (appraiser or Assistant Commissioner or Deputy Commissioner) of the Custom House, the officers of the preventive Commissionerates who have jurisdiction over the area, the central excise officers who may have been notified as customs officers in the area, officers of Directorate of Revenue Intelligence who have jurisdiction over the area, etc. The decision of Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [ 2021 (3) TMI 384 - SUPREME COURT] is not only that officers of DRI were not proper officers under Section 2(34) of the Act, but the power of issuing a notice under Section 28 of the Act is conferred on the proper officer and not a proper officer or any proper officer. The proper officer for this purpose is held to be the officer of the appraising group who has assessed the Bill of Entry in the first place or his successor in office. This is because the notice under section 28 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d value, reassess the value of the goods, recover differential duty under section 28(4) of the Act along with interest, confiscate goods and impose penalties. The SCN was adjudicated by the Commissioner (Adjudication) New Custom House, New Delhi by an order dated 31.12.2013. On appeal by four appellants, this Tribunal, by Final Order No. 58374-68377/2017 dated 15.12.2017, remanded the matter to the original authority directing him to decide the matter afresh after providing the appellants therein to present their side of the case. On this remand order, the impugned order is passed. 3. Aggrieved, the appellant filed this appeal which was dismissed by Order dated 11 February 2019 for the reason that he had not made the mandatory pre-deposit. On 1 April 2019, the appellant filed an application seeking recall of the order dated 11 February 2019 on the ground that he had not received the communication from the Registry. This application dated 1 April 2019 was listed on several dates and order dated 1 October 2019 was passed stating that there was no good reason to recall the order dated 11 February 2019. The appellant filed Customs Appeal CUSAA 13/2021 before Delhi High Court. The Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer . 14. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a customs officer who has been assigned the specific functions of assessment and re-assessment of duty in the jurisdictional area where the import concerned 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 in as much as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. Moreover, if the Revenue's contention that once territorial jurisdiction is conferred, the Collector of Customs (Preventive) becomes a proper officer in terms of Section 28 of the Act is accepted, it would lead to a situation of utter chaos and confusion, in as much as all officers of customs, in a particular area be it under the Collectorate of Customs (Imports) or the Preventive Collectorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of assessment or re-assessment of duty and issue of show cause Notice to demand Customs duty under Section 17 read with Section 28 of the Act in respect of goods entered for home consumption is not competent to function as a proper officer which has not been the legislative intent. 2. In view of the above the Show Cause Notices issued over the time by the Customs officers such as those of the Commissionerates of Customs (Preventive), Directorate General of Revenue Intelligence and others, who were not specifically assigned the functions of assessment and re-assessment of customs duty may be construed as invalid. The result would be huge loss of revenue to the exchequer and disruption in the revenue already mobilized in cases already adjudicated. However, having regard to the urgency of the matter, the Government issued notification on 6th July, 2011 specifically declaring certain officers as proper officers for the aforesaid purposes. 3. In the circumstances, it has become necessary to clarify the true legislative intent that Show Cause Notices issued by Customs officers, i.e., officers of the Commissionerates of Customs (Preventive), Directorate General of Revenue Intell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 assessment, to re-open the assessment on the grounds that the duty was not paid/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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