2014 (1) TMI 275 - Commissioner - Customs

Power of Superintendent - Interpretation of proper officer - Power to pass final order - Held that - Order dated 8-3-2013 passed by the Superintendent (I/E), Customs Division, Ratnagiri, the Respondent herein, under his signature is bad in law & a nullity as being without jurisdiction, for the reason it is not signed by the Proper Officer & the Respondent, who is not assigned any function of assessment either by the Board/Commissioner cannot claim to be Proper Officer , or Authority competent to pass any decision or Order, especially when the Section 18(2) talks about the proper Officer . Superintendent of Customs is not the proper officer to do final assessments under Section 18(2) of the Customs Act, 1962. Hence, I the impugned order dated 31-1-2013 is set aside and the consequential order of the Superintendent dated 8-3-2013 as illegal and bad in law - prima facie it appears that the order for levy of interest and grant of suo motu refund has not been examined in accordance with law. The Lower Authority should ensure that quasi-judicial orders issued are compliant with the provisions of the Act - Appeal allowed.

Issues Involved:
1. Jurisdiction of the Superintendent to pass final assessment orders.
2. Compliance with Section 18(2) of the Customs Act, 1962.
3. Proper Officer as defined under the Customs Act, 1962.
4. Validity of the impugned order and consequential orders.
5. Delay in finalization of assessments and its implications.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Superintendent to pass final assessment orders:
The primary issue raised by the learned Advocate is the jurisdiction of the Superintendent to pass the final assessment order. The argument is that the Superintendent is not the "Proper Officer" as defined under Section 2(34) of the Customs Act, 1962, and therefore lacks the authority to finalize assessments. The impugned order dated 8-3-2013 was passed by the Superintendent (I/E), Customs Division, Ratnagiri, which the Appellant contends is without jurisdiction and thus a nullity.

2. Compliance with Section 18(2) of the Customs Act, 1962:
Section 18(2) of the Customs Act, 1962, mandates that the "Proper Officer" must make a final assessment of duty for goods cleared for home consumption or exportation, and adjust the amount paid provisionally against the duty finally assessed. The Appellant argues that the Superintendent is not authorized to perform this function as per the statutory provisions.

3. Proper Officer as defined under the Customs Act, 1962:
The term "Proper Officer" is defined in Section 2(34) of the Customs Act, 1962, and is assigned specific functions by the Board or the Commissioner of Customs. The Appellant points out that the Superintendent is not assigned the function of final assessment under Section 18(2) by any notification or delegation by the Board or Commissioner. Notification No. 40/2012-Customs (N.T.) specifies the officers designated as "Proper Officers" for various functions under the Act, which does not include the Superintendent for final assessments under Section 18(2).

4. Validity of the impugned order and consequential orders:
The impugned order dated 31-1-2013 and the subsequent order dated 8-3-2013 by the Superintendent are challenged as being illegal and bad in law due to the lack of jurisdiction. The adjudicating authority found sufficient force in the argument and concluded that the final assessment was improperly conducted by the Superintendent, who is not the "Proper Officer." Consequently, the impugned orders were set aside.

5. Delay in finalization of assessments and its implications:
The learned Advocate highlighted the prolonged delay in the finalization of assessments for the years 2000-01 to 2004-05, which has been pending for over 12 years. The repeated remands for de novo adjudication have resulted in fruitless litigation, causing inconvenience to both the Department and the Assessee, a Central Government Public Sector undertaking. The adjudicating authority noted that such delays could be avoided in the interest of all parties involved.

Conclusion:
The appeal was allowed, and the impugned order dated 31-1-2013 and the consequential order dated 8-3-2013 were set aside on grounds of jurisdiction. The adjudicating authority directed the Lower Authority to issue the finalization of assessment order as per law, ensuring compliance with the provisions of the Customs Act, 1962. The adjudicating authority also emphasized the need for quasi-judicial orders to be compliant with the law and highlighted the importance of avoiding unnecessary delays in the finalization of assessments.

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