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TMI Blog2012 (5) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... Traders (appellant in appeal No. C/1194/01) under Section 28(1) of the Customs Act, 1962, with interest thereon under Section 28AB of the Act and imposed penalties on M/s Nylex Traders, Shri Chandrakant D. Shah (Proprietor), Shri Bharat D. Doshi and a few others under Section 112 of the Act. Shri C.D. Shah and Shri B.D. Doshi are aggrieved by the respective penalties. 2. Two miscellaneous applications, one filed by M/s Nylex Traders and other by Shri C.D. Shah are also before us. These applications seek to incorporate certain jurisdictional objection as additional ground of the relevant appeals. The gist of this objection is that the Commissioner of Customs (Preventive) did not have jurisdiction to issue the show-cause notice and, for that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment of their memoranda of appeals is liable to be defeated for the ends of justice. 4. Both sides have also addressed the main issue as to whether the Commissioner of Customs (Preventive), Mumbai has jurisdiction to issue the show-cause notice. The learned Counsel submits that he was not 'proper officer' as defined under Section 2(34) of the Customs Act inasmuch as there is no documentary material to show that the learned Commissioner had been assigned the function of issuing show-cause notice and adjudicating the same in relation to imports made through the New Custom House, Mumbai. In this connection, learned Counsel has claimed support from Commissioner of Customs Vs. Syed Ali - 2011 (265) ELT 17 (SC). He has also referred to a few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances of this case, the assessment passed by the Assistant Sales Tax Officer, Sector-II, was a valid assessment or a void one without jurisdiction." The Hon'ble High Court answered the above question in favour of the assessee. That is how the dispute happened to come up before the apex Court. The relevant paragraph of the judgment of the apex Court reads as under: - "The only other contention advanced by Mr. Karkhanis is that the assessee having not taken any objection as to the jurisdiction before the assessing authority he is precluded from raising that objection at a later stage. This contention is again unacceptable to us. Herein we are concerned with the question of jurisdiction. Unless there is some provision either in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted by M/s Nymex Traders through New Custom House, Mumbai. The show-cause notice was, however, not issued by the Commissioner of Customs (Imports). It came to be issued by the Commissioner of Customs (Preventive), who, according to M/s Nymex Traders and its proprietor, did not have jurisdiction to issue the notice. The reason stated by these appellants is that the Commissioner of Customs (Preventive) was not a 'proper officer' as defined under Section 2 of the Customs Act, 1962. The definition reads as follows: - "2. Definitions. - (34) '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 the Commissioner of Customs;" As rightly submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvinced that Notifications No. 250-Cus. and 251-Cus., both dated 27th August, 1983, issued by the Central Government in exercise of the powers conferred by sub-section (1) of the Section 4 of the Act, appointing Collector of Customs (Preventive) etc. to be the Collector of Customs for Bombay, Thane and Kolaba Districts in the State of Maharashtra did not ipso facto confer jurisdiction on him to exercise power entrusted to the 'proper officers' for the purpose of Section 28 of the Act. In that view of the matter, we do not find any substance in the contention of Mr. V. Shekhar, learned Senior Counsel, appearing for the revenue in the second set of appeals, that the source of power to act as a 'proper officer' is Sections 4 and 5 of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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