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TMI Blog2014 (10) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Board or the Commissioner of Customs, he had no jurisdiction to issue show cause notice. It is exactly what the Tribunal has said. - Decided against the revenue. - CSTA No. 3 of 2013 and CSTA Nos. 3-5 of 2014 - - - Dated:- 16-10-2014 - N. Kumar and B. Manohar, JJ. Shri Jeevan J. Neeralgi, Advocate, for the Appellant. Shri Sriyuths N. Anand and Anirudha R.J. Nayak, Advocates, for the Respondent. JUDGMENT [Judgment per : N. Kumar, J.]. - The Revenue has preferred these appeals against the order passed by the Tribunal holding that the proceedings initiated under Rule 8 of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 (for short hereinafter referred to the Customs Rules, 1996 ) by the Deputy Commissioner of Central Excise is one without jurisdiction as he is not a proper Officer of Customs under Section 28(1) of the Customs Act and accordingly set aside the show cause notices issued by such authority. 2. The assessee is engaged in the manufacture of connectors, connector harnesses and parts thereof. They have been issued with the registration certificate under the Customs Rules, 1996. It was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 8 can recover the amount equal to the difference between the duty leviable on such goods but for the exemption and that already paid, if any, at the time of import along with interest. Therefore, he submits that it is not open to the assessee who has submitted themselves to the jurisdiction of the said authorities to question the jurisdiction of the authorities to initiate action under the Rules. The entire scheme of the Rules, if properly understood, it is clear that the said authorities have authority to initiate action under Rule 8 and therefore, the finding recorded by the Tribunal is erroneous and requires to be set aside. 4. Per contra, the learned Counsel appearing for the assessee submitted that Section 28 of the Customs Act provides for recovery of duties not levied, short levied or erroneously refunded and a proper Officer is vested with the power to initiate proceedings for recovery of the same. The Proper Officer is defined under Section 2(34) of the Act. In the instant case, the Deputy Commissioner of Excise is not the proper Officer under the Customs Act and therefore, the proceedings initiated by him is one without jurisdiction as rightly held by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been so levied or which has been short-levied, or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of, - (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under Section 28AA or the amount of interest which has been so paid or part-paid : [Provided that the proper officer shall not serve such show cause notice, where the amount involved, is less than rupees one hundred.] 2. xxxxxxxxxxxxxxxxxxxxxxxxxx 11. xxxxxxxxxxxxxxxxxxxxxxx A reading of the aforesaid provision makes it clear that the person entrusted with the task of recovery of duty is the proper officer. The proper officer is defined under Section 2(34) as under :- 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 Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons had been filed and the consignments had been cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Act. 7. From the aforesaid judgment, it is clear that only such officers of the Customs who have been assigned specified functions would be proper officers in terms of Section 2(34) of the Act. The specific entrustment of functions by either the Board or Commissioner of Customs is the governing test to determine whether the Officer of customs is the proper officer. From a conjoint reading of Sections 2(34) and 28 of the Customs Act, it is manifest that only such a customs officer who has been assigned the specific functions 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. The Supreme Court in the case of Subhash Photographics v. Union of India [1993 (66) E.L.T. 3 (S.C.)] dealing with the power of making rules under Section 156 and Regulations under Section 157 of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, it is also useful to refer to Chapter II of The Customs Act, 1962. Section 3 deals with the Classes of Officers of Customs . Section 4 deals with Appointment of Officers of Customs . It confers power on the Board to appoint such persons as it thinks fit to be officers of Customs. Without prejudice to the provisions of sub-section (1), Board may authorize a Chief Commissioner of Customs or a Joint or Assistant or Deputy Commissioner of Customs to appoint Officers of Customs below the rank of Assistant Commissioner of Customs. Section 5 of the Act deals with Powers of Officers of Customs . However Section 6 of the Customs Act confers power on the Central Government to entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of Customs under this Act. Therefore, under the scheme of the Act, the power of the Central Government, the power of the Board and the power of persons to whom the Board entrusts responsibilities are clearly defined and they are mutually exclusive. In this background, we may look at the Rules framed by the Central Government by virtue of the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. In other words, by the said amendment, deeming provision is introduced into Section 2(34) and all officers appointed under sub-section (1) of Section 4 were treated as proper officers. Consequently the Board issued Circular 44 of 2011 on 23rd September, 2011, giving effect to the said amendment. Further, a notification also came to be issued in exercise of the powers conferred by sub-section (34) of Section 2 of the Customs Act, 1962, the Central Board of Excise and Customs assigned the functions of the proper officer to the following officers mentioned in column (2) of the Table, for the purposes of Section 17 and Section 28 of the said Act, which is extracted hereunder : - 4. Commissioners of Central Excise, Additional Commissioners or Joint Commissioners of Central Excise, Deputy Commissioners or Assistant Commissioners of Central Excise. 11. Therefore, for the first time, the Board appointed Deputy Commissioners or Assistant Commissioners of Central Excise as proper officers for the purpose of Section 17 and Section 28 of the Act. Till such time, neither the Board nor the Commissioner of Customs had appointed them as proper officers. Though the Parliament amended S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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