2021 (11) TMI 369 - AT - Customs

Jurisdiction - power of DRI to issue SCN - proper officer under section 28 of the Customs Act or not - HELD THAT - This precise issue was examined by the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT . The Supreme Court observed that the nature of the power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import is a power that has been conferred to review the earlier decision for assessment. This power which has been conferred under section 28 of the Customs Act on the proper officer, must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods. Thus, the Additional Director General, DRI did not have the jurisdiction to issue the show cause notice. The Punjab and Haryana High Court in M/S STEELMAN INDUSTRIES VERSUS 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. The order passed by the Commissioner of Customs (Adjudication) cannot be sustained and is set aside - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Jurisdiction of the Additional Director General, DRI to issue the show cause notice under section 28 of the Customs Act.
2. Validity of proceedings under section 124 of the Customs Act for confiscation and imposition of penalty when the duty demand fails.

Detailed Analysis:

1. Jurisdiction of the Additional Director General, DRI to issue the show cause notice under section 28 of the Customs Act:

The primary issue in this case was whether the Additional Director General, DRI had the jurisdiction to issue the show cause notice under section 28 of the Customs Act. The appellant contended that the Additional Director General, DRI was not the "proper officer" under section 28 to issue such notice. This argument was supported by precedents from the Supreme Court in Canon India Pvt. Ltd. vs. Commissioner of Customs and Commissioner of Customs, Kandla vs. M/s. Agarwal Metals and Alloys.

The Supreme Court in Canon India clarified that the power to recover duty not paid or short paid after goods have been assessed and cleared for import is a power to review the earlier decision for assessment. This power is conferred on the "proper officer," which must be the officer who initially assessed and cleared the goods. The Court emphasized that allowing another officer from a different department to exercise this power would lead to an "anarchical and unruly operation of a statute."

The Court further noted that the Additional Director General of DRI was not the proper officer to exercise the power under section 28(4), and the initiation of recovery proceedings by him was without jurisdiction and liable to be set aside. This decision was followed in subsequent cases, such as Agarwal Metals and Alloys, where the Supreme Court reiterated that the show cause notices issued by the Additional Director General, DRI were invalid.

High Courts, including Bombay, Madras, Karnataka, and Punjab and Haryana, have also set aside proceedings where show cause notices were issued by the DRI, following the Supreme Court's decision in Canon India.

2. Validity of proceedings under section 124 of the Customs Act for confiscation and imposition of penalty when the duty demand fails:

The Department argued that even if the notice under section 28 was without jurisdiction, the notice under section 124 for confiscation of goods and imposition of penalty would still survive. However, the appellant contended that the proposal for confiscation and penalty could not be segregated from the duty demand. This argument was supported by the Tribunal's decision in Bakeman’s Home Products Pvt. Ltd. vs. Collector of Cus., Bombay, which held that if the duty demand fails, the proceedings for confiscation and penalty cannot survive.

The Tribunal in Bakeman’s Home Products emphasized that the demand of duty and the proposals for confiscation and penalty are interlinked and cannot be segregated. Therefore, if the demand of duty is found to be without jurisdiction, the proceedings for confiscation and penalty based on the same framework must also fail.

Conclusion:

Based on the above analysis, the show cause notice dated 30.01.2009 issued by the Additional Director General, DRI was without jurisdiction, and all proceedings undertaken based on this notice were invalid. Consequently, the order dated 31.05.2012 passed by the Commissioner of Customs (Adjudication) was set aside. The appeal was allowed, and the proceedings for confiscation and penalty were also invalidated due to the lack of jurisdiction in the initial demand of duty.