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TMI Blog1996 (5) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... are dated 24-6-1994. In the first and second group of appeals, the Orders-in-Original are for dropping the proceedings on the ground that the officer issuing the Show Cause Notices, was not the proper officer authorised to issue such Show Cause Notices, whereas in the third group of appeals, the adjudicating authority has, while dropping the part of the proceedings on the same ground as indicated above, have dropped the other part of the demand, by giving his findings on the merits. 3. Confining to the facts necessary for appreciation and determination of the points at issue, three consignments declared to contain Australian Masoor Whole were imported and each of the importers were the holders of DEEC Pass Book, and the licences obtained by them, permitted them to import Raw Whole Masoor (Lentils) . On presentation of the documents, the items were ordered clearance duty free. However subsequently, on some specific information received to the effect that what was actually imported were Australian Vetches, by misdeclaring the same as Australian Masoor Whole, and to fulfil export obligations they had exported Masoor Dal of Indian Origin, investigations were conducted by Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also held that, so far as the part of the demand as also confiscation of the seized goods are concerned, it is not established that what was imported were vetches and the evidence adduced indicated that Masoor Whole, was the item imported and hence the demand of duty to that extent as also proposed confiscation were not sustainable. 6. All the three orders were however taken in review by the Board, and in exercise of powers under Section 129D(1) of the Act, applications have been filed, which vide sub-section (4) of that Section, have been registered as appeals. 7. Mr. K.M. Mondal, the Ld. SDR, initially taking up the issue as to validity of Notice, which is a common issue in all the three groups of appeals, has pleaded that undisputedly, the Show Cause Notices have been issued by the Assistant Director DRI, Bombay, but, vide Notification No. 19/90 (N.T.)-Cus., dated 26-4-1990 the Assistant Director of DRI Bombay Zone, has been appointed as Assistant Collector, and thus, he can exercise all the powers of the Assistant Collector. In his submission the subject Show Cause Notices are the composite notices issued vide Section 28 and Section 124 of the Act, and so far as Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als are concerned, the ld. SDR has in addition to his plea as to validity of notice, raised as common plea in relation to all the three groups of appeals, pleaded that there are voluminous documentary evidences to indicate that what is imported is vetches (Vicia Sativa) which are unfit for human consumption. He refers to phytosanitory certificates issued by the Government of Australia as well as other corresponding documents and correspondence, as also the test certificate issued by the Central Food Laboratory, to indicate the imported item to be not Masoor Whole (Lentils) but vetches. The Ld. SDR has then referred to the circular issued by the Australian Government warning against export of vetches des- cribing them as lentils. In his submission the adjudicating authority has, ignoring all those evidences, relied upon opinion of some other institutions. In his submission, this is done by the adjudicating authority without bringing these aspects to the Notice of the prosecuting agency or without cross-examining the persons who had carried out such re-test, and establishing authenticity thereof. 9. Mr. V. Laxmikumaran, the Ld. Advocate for the Respondents has, while supporting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her officers, who could otherwise fall within the category of proper officer. Thus, as is submitted by the Ld. Advocate, the Show Cause Notices issued by the Assistant Director DRI vide Section 28(1) of the Act, is rightly held by the adjudicating authority, as issued without Jurisdiction. As regards, Notice under Section 124 of the Act the Ld. Advocate has pleaded that the Notice has to be read as a whole, and determination on both the counts is so interlinked that they cannot be conducted under different adjudication proceedings. 10. As to the decision on merits given in the third group of appeals, besides raising a preliminary Objection as to maintainability of the appeals on merits, on the ground that the order of the Board vide Section 129D(1) of the Act, does not cover the said issue, the Ld. Advocate for the Respondents has pleaded that the allegation is principally based on the report from the Central Food Laboratory and Shirodkar the Director has been cross-examined and it is duly established by documentary evidence that the basic standard of BCLA for conduct of proper test as per Ressler method was not available with them on the date shown as the one when the test was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithheld till the final outcome of these appeals. 14. Taking up first the issue as to the validity of the Show Cause Notices, and issue which is common for all the three groups of appeals, with certain facts and legal positions, as indicated earlier being admitted, the only point required to be considered is who is the proper officer and whether Assistant Director DRI could have issued the Show Cause Notices for demand of duty, vide Section 28(1) of the Act, where the period of demand goes beyond the normal period of 6 months laid down as limitation period and where extended period has been invoked. In other words, whether the Assistant Director DRI is the proper officer for the purpose of Section 28(1) of the Act. 15. Section 2(34) of the Act reads thus : `"Proper Officer" in relation to any functions to be performed under this Act, means the Officer of Customs who is assigned those functions by the Board or Collector of Customs . Thus, for the purpose of being designated as proper officer he must have been assigned those functions by the Board or Collector of Customs. There is no evidence available on record to show that such specific function of levy and collection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate standing orders as also Trade Notices/Public Notices for this purpose . It is not disputed, that pursuant to the said circular from the Board, various Collectorate s have also issued Trade/Public Notice. 17. In the submission of the Ld. SDR, these are mere executive/administrative directions and when the statute empowers the officers to issue Show Cause Notices, such instructions from the Board cannot be curtail their statutory powers. This submission however has to be rejected on two counts namely, as duly discussed earlier only such of the officers, who have been assigned the duty, either by specific or general order alone can exercise the functions as proper officer and, reading the wordings of Section 2(34) of the Act, it is the Board who is statutorily empowered to assign the duties for being designated as a proper officer , and the said status by itself has not conferred on any officer of any cadre under the statute, the status of proper officer but has left it within the exclusive domain of the Board (or the Collector of Customs) to assign the function and designated an officer as a proper officer . Any assignment made within the same frame work would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings initiated require adjudication as to the liability to confiscation , and case law exists to the effect that in such a case appropriate order for penalty could be passed. 22. The Show Cause Notices, in the instant cases are issued on the allegations that the items imported are other than those for which the advance licence have been granted and as such, the importers are not eligible to avail the benefit of duty free import and hence, the duty amount have to be recovered. It is undisputed that except for small quantity, the goods after import and after alleged processing, have been re-exported by way of fulfilling the export obligation and with goods physically not available, the issue to be determined would be the quantum of penalty amount, if the allegations are proved. This aspect will have a direct bearing on the issue of attempted evasion of duty which issue again falls within the ambit of the provisions of Section 28(1) of the Act. Thus, both the issues appear to have been so interlinked that holding of separate proceedings or segregating the issues may neither be feasible nor desirable. Thus, though theoretically it can be held that notice under Section 124 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure laid down in the paper by Ressler, and seems to have stated that standard of BCLA that was necessary for the due testing, was Sigma Brand procured from M/s. M.M. Suppliers, Pune. The respondents have, on enquiry from M/s. Sigma Aldridth Chemical Co. USA brought out that said material was supplied to M/s. M.M. Suppliers, Pune only on 23-3-1993, indicating that the Test Results conducted by the CFL could not be relied upon. On the other hand, on the representation of the importers, the DRI sent samples to Chief Chemist CRCL, who in turn sent the samples to two authorities. Dr. Sharma Head of the Department Division of Genetic IARA and Dr. Rana Director of National Bureau of Plant Genetic Research at New Delhi, and both the said authorities have opined the items tested to be LENS CULINARIS (the Botanical name of Masoor Dal). These Tests appear to have been carried out at the request from the Chief Chemist CRCL, who seem to have selected these two authorities on the subject. The samples so tested were taken by the DRI, who have also forwarded them to the Chief Chemist CRCL. Because this is done through DRI, it cannot be presumed that DRI were unaware of such sample testing and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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