TaxTMI 
TaxTMI 
2022 (7) TMI 105
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....er the following substantial questions of law: 1. Whether the Tribunal was correct in law as well as in facts in holding that as per the provision of Foreign Trade Policy, conditions on advance license and condition in the exemption notification debarred the manufacturer exporter to produce or source export goods for discharging the export obligation? 2. Whether the sale of duty free goods imported under the said Notification is permissible once the export obligation is completed and the Foreign Exchange realized without waiting for the Licensing Authority to redeem the Legal Undertaking (LUT) and endorsing the Advance License as transferable? 2. Mr. Paritosh Gupta, learned counsel appearing for the appellant has drawn our attention to the judgment of the Hon'ble Apex Court in the case of M/s. Canon India Private Limited vs. Commissioner of Customs in Civil Appeal No.1827 of 2018 dated 9.3.2021 to contend that the issue relating to the jurisdiction of the officer to issue show cause notice has been laid to rest by the Hon'ble Apex Court and said issue being no more res integra, it would cover the show cause notice issued to the appellant herein which had resulted in Order-in-O....
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....advance licences being granted. Against the said 2 advance licences, the assignments which were imported were cleared under the respective bills of entry which were duly assessed by the proper officer under the Act. 6. The Director of Revenue Intelligence commenced investigation and it resulted in issuance of impugned show cause notice dated 27/29.8.2002 by the Additional Director General, DRI, Mumbai. The gist of the said show cause notice is to the following effect: "(a) Customs duty amounting to Rs.86,85,363/- on the goods imported duty free under the two Advance Licences should not be demanded and recovered from them under Section 28(1) of the Customs Act, 1962, read with the first proviso thereof. The details of computation of this duty demanded are given in Annexure 'C' to this Notice. (b) The 18.200 MT of Tetracycline HCL valued at Rs.1,07,44,335/- and 45.00 MT of Vitamin C valued at Rs.1,00,02,463/- cleared under the Advance Licence No.01000837 dtd. 11.03.1997 should not be held liable to confiscation under the provisions of Section 111(0) and/or Section 111(m) and/or Section 111(d) of the Customs Act, 1962. however the goods are not available for confiscation. (c) I....
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.... This Section empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts and confers the power of recovery on "the proper officer". The obvious intention is to confer the power to recover such duties not on any proper officer but only on "the proper officer". This Court in Consolidated Coffee Ltd. and Another vs. Coffee Board, Bangalorehas (1980) 3 SCC 358 held:- "14. ...Secondly, and more importantly, the user of the definite article 'the' before the word 'agreement' is, in our view, very significant. Parliament has not said 'an agreement' or 'any agreement' for or in relation to such export and in the context the expression 'the agreement' would refer to that agreement which is implicit in the sale occasioning the export." In Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd (2001) 3 SCC 609. has held:- "9. ...'The' is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalizing force of 'a' or 'an'. It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. 'The' is always me....
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.... 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. 16. At this stage, we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 28(4) was even a proper officer. The Additional Director General can be considered to be a proper officer only if it is shown that he was a Customs officer under the Customs Act. In addition, that he was entrusted with the functions of the proper officer under Section 6 of the Customs Act. The Additional Director General of the DRI can be considered to be a Customs officer only if he is shown to have been appointed as Customs officer under the Customs Act. 18. The next step is to see whether an Additional Director General of the DRI who has been appointed as an officer of Customs, under the notification dated 7.3.2002, has been entrusted with the functions under Section 28 as a proper officer under the Customs Act. In support of the contention that he has been so entrusted with the functions of a proper offi....
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....ction 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. 22. In the above context, it would be useful to refer to the decision of this Court in the case of Commissioner of Customs vs. Sayed Ali and Another (2011) 3 SCC 537 wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder:- "16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the 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 (I....
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....n relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs;' It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be 'proper officers' in terms of Section 2(34) the Act. Specific entrustment of function 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'. 20. 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 inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions." 23. We, therefore, hold tha....