TMI Blog2022 (4) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - Various Benches of the Tribunal have also set aside the orders for the reason that the show cause notices were not issued by the proper officer, since they were issued by the Department of Revenue and Intelligence. Thus, the show cause notice dated 01.09.2017 issued by the Additional Director General, DRI is, therefore, without jurisdiction as the said officer was not the proper officer and, therefore all proceedings undertaken by the Department on this show cause notice is, therefore, without jurisdiction. The order dated 29.03.2019 passed by the Commissioner of Customs (Import), therefore, cannot be sustained. A Division Bench of the Tribunal in M/S BERIWALA IMPEX PVT. LTD. VERSUS COMMR. OF CUSTOMS (PORT) , KOLKATA [ 2022 (3) TMI 120 - CESTAT KOLKATA] , also examined the proposed amendments to section 2(34), 3, 5 of the Customs Act and introduction of the new section 110AA in the Customs Act and held that the impugned order emanating from a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention learned counsel placed reliance upon decisions of the Supreme Court in Canon India Pvt. Ltd. vs. Commissioner of Customs [2021 (376) E.L.T. 3 (S.C.)] and Commissioner of Customs, Kandla vs. M/s. Agarwal Metals and Alloys [ 2021 (9) TMI 316- Supreme Court ] . 4. Shri Sunil Kumar, learned authorised representative appearing for the Department, however submitted that the Additional Director General, DRI had the jurisdiction to issue the show cause notice and also submitted that the Department has filed a review petition against the judgment of the Supreme Court in Canon India on 07.04.2021 and it is pending. Learned authorised representative, therefore, submitted that the hearing of this appeal may be deferred. Learned authorised representative also submitted that the notice has been issued both under sections 28 and 124 of the Customs Act and, therefore, even if the notice issued under section 28 is held to be without jurisdiction, the notice issued under section 124 of the Customs Act would still survive. 5. The submissions advanced by learned counsel for the parties have been considered. 6. The first issue that arises for consideration is whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 superior authority such as Appellate or Revisional Authority. It is, therefore, clear to us that the Additional Director General of DRI was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director General, DRI by issuance of a show cause notice was without any authority of law and was, therefore, liable to be set aside. 8. It is not disputed by the learned authorised representative appearing for the Department that the goods had earlier been assessed and that the Additional Director General DRI did not carry out this initial assessment. 9. The aforesaid decision of the Supreme Court in Canon India was subsequently followed by the Supreme Court in Agarwal Metals and Alloys and the judgment is reproduced below: Delay condoned. In view of decision dated 09.03.2021 of three judge Bench of this Court in Civil Appeal No. 1827 of 2018 titled as M/s. Canon India Private Ltd. vs. Commissioner of Customs reported in 2021(3) SCALE 748, these appeals must fail as the show cause notice(s) in the present cases was also issued by Additional Director General (ADG), Directorate of Revenue Intelligence (DRI), who is not a proper officer within the meaning of Section 28(4) read with Section 2(34) of the Customs Act, 1962. Hence, these appeals stand dismissed. However, dismissal of these appeals will not come in the way of the competent auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der impugned in these writ petitions is quashed. 13. 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 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 cause notice as the Additional Director General, DRI was not the proper officer . 15. Various Benches of the Tribunal have also set aside the orders for the reason that the show cause notices were not issued by the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and penalty cannot be segregated from duty demand and, therefore, the proceedings for confiscation and imposition of penalty cannot be sustained. The relevant portion of the decision is reproduced below: 13. Only four of the decisions cited before us are relevant in the context of the dispute before us. In Northern India Woollen Mills v. COC - 1991 (53) E.L.T. 81 (Tribunal), it was held that duty demand cannot be segregated from confiscation and penalty. In COC v. Poona Roller - 1997 (89) E.L.T. 604 (Tribunal) while purporting to recognize the theoretical possibility of notice under Section 124 surviving even after failure of demand of duty, it was observed that both aspects are so interlinked that segregating the issues may be neither feasible nor desirable. In Manohar Bros. (Capacitors) - 1996 (15) RLT 581 , it was held that when demand of differential duty fails, the proceeding cannot survive. The decision of the Supreme Court in COCE v. H.M.M. Ltd. - 1995 (76) E.L.T. 497 (S.C.) that the question of penalty would arise only if the Department is able to sustain the demand of duty has to be taken into consideration. In the cases at hand, demand was raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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