TMI Blog2022 (2) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (Judicial) and Shri P. Anjani Kumar, Member (Technical) Ms. Radhika Chandrasekar, Advocate for the Appellants Ms. K. Komathi, ADC (AR) for the Respondent ORDER With the consent of both sides, after allowing the early hearing application in Appeal No. C/40315/2015, the same is taken up for hearing along with Appeal No. C/40314/2015 which is listed today. 2. Brief facts are that the Directorate of Revenue Intelligence (DRI), Chennai Zonal Unit received information that M/s. Madurai Power Corporation Ltd. (appellant in Appeal No. C/40314/2015) procured Low Sulphur Fuel Oil from M/s. Indian Oil Corporation Ltd. (IOCL) for its power plant at Madurai on high sea sale basis. That during the course of import, apart from the high sea sales contract, IOCL also raised debit notes on the appellant towards facilitation charges @₹ 400 per MT in the year 2008 and @ ₹ 600 per MT in the year 2009. Further, amounts in nature of ocean loss @ 0.5% and letter of credit charges @0.6% of CF value, demurrages whenever incurred in terms of Fuel Supply Agreement, 1997 read with side letter 2007 for sourcing Low Sulphur Fuel Oil from abroad by IOCL were paid by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the judgment of the Hon'ble Supreme Court in the case of Canon India Pvt. Ltd. Vs. Commissioner of Customs 2021 ELT (376) 3 (SC). ADG, DRI is not the proper officer under section 28 and therefore the entire demand has to be set aside. The officers of DRI have no power to issue Show Cause Notice for demand of duty under sec. 28 of the Customs Act, 1962. The said decision has been followed by the Hon'ble Supreme Court in the case of CC, Kandla Vs. Agarwal Metals and Alloys reported in 2021 (376) ELT 7 (SC). The Hon ble jurisdictional High Court has followed the decision in Quantum Coal Energy P. Ltd. Vs. CC, Tuticorin reported in 2021 (377) ELT 488 (Mad.). She prayed that the appeals may be allowed. No arguments on merits were advanced by the counsel for the appellant. 5. The learned AR Ms. K. Komathi appeared for the department. 6. Heard both sides and perused the records. 7. The main argument advanced by the learned counsel is that the Show Cause Notice having been issued by DRI is not sustainable in law in terms of the decision of the Hon'ble Supreme Court in the case of Canon India Pvt. Ltd. (supra). The Hon'ble Supreme Court in the said case held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty has not been levied or has been short levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set aside and the ensuing demands are also set aside. 8. 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 jurisdiction to do so. Perhaps, the judgment in Canon India (supra) has not been either read by the concerned officials or has not been understood in the correct perspective. As a result, this Court is flooded with litigation on the same issue and we cannot help but observe that it is the action of the Respondents in not applying the binding dicta of the Hon'ble Supreme Court, which is breeding unnecessary litigation. 9. We, therefore, direct the Registry of this court to send a copy of the judgment dated 9.3.2021 passed by the Hon'ble Supreme Court in Canon India (supra) to the Respondents herein, through electronic mode, so that corrective measures and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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