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TMI Blog2021 (8) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... cate. JUSTICE VIKAS BAHL, J. (Through Video Conferencing) CM-7508-2021 This is an application filed by the applicant/petitioner to dispose of the present writ petition in light of the judgment dated 09.03.2021 passed by the Supreme Court in Civil Appeal No.1827 of 2018 titled M/s Canon India Pvt. Ltd. Vs. Commissioner of Customs, cited at 2021 (376) ELT 3 (SC) . It has further been prayed that the present petition, which was adjourned sine die to await the crystallization of the issue of law arising in the present case, by the Supreme Court of India, may kindly be fixed for hearing. It has been stated in the application that the Supreme Court of India in M/s Canon India Pvt. Ltd. (supra) has held that the Joint/Additional Director (in short DRI ) is not the proper officer to issue show cause notice under Section 28(4) of Customs Act, 1962 and that in the present case also the show cause notice culminating into the order-inoriginal dated 15.05.2015 has been issued by the Joint Director, DRI. In view of the averments made in the application, and also with the consent of Learned Counsel for both the parties, the main petition is taken up on board fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise requires. (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. The Show Cause Notice could be issued by proper officer and respondent is not a proper officer. There is no notification by which the Joint Director-DRI has been notified as proper officer. The Hon ble Supreme Court in case of Commissioner of Customs Versus Sayad Ali, 2011 (265) ELT 17 (SC) has clearly held that proper officer means an officer who has been specifically entrusted functions either by Board or by Commissioner of Customs. In the absence of specific entrustment, the officer or Customs had no power to issue Show Cause Notice. In the present case, there is demand of drawback and it had been raised under Rule 16 of the Drawback Rules. In the absence of any notification, notifying the Joint Director-DRI as proper officer, the Joint Director-DRI had no authority to issue Show Cause Notice. Therefore, the Joint Director-DRI had issued Show Cause Notice in question beyond his jurisdiction. It has further been stated that as per settled law, once the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dutiability of any goods and the amount of duty payable with reference to, inter alia, exemption or concession of customs duty vide Section 2 (2) (c) of the Customs Act, 1962. 12. 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 broadly a power to review the earlier decision of assessment. Such a power is not inherent in any authority. Indeed, it has been conferred by Section 28 and other related provisions. The power has been so conferred specifically on the proper officer which must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods i.e. the Deputy Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods. 13. Where the statute confers the same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer under Section 6 of the Customs Act. The Additional Director General of the DRI can be considered to be a Customs officer only if he is shown to have been appointed as Customs officer under the Customs Act. 17. Shri Sanjay Jain, learned Additional Solicitor General, relied on a Notification No.17/2002 - Customs (NT) dated 7.3.2002 to show all Additional Directors General of the DRI have been appointed as Commissioners of Customs. At the relevant time, the Central Government was the appropriate authority to issue such a notification. This notification shows that all Additional Directors General, mentioned in Column (2), are appointed as Commissioners of Customs. 18. The next step is to see whether an Additional Director General of the DRI who has been appointed as an officer of Customs, under the notification dated 7.3.2002, has been entrusted with the functions under Section 28 as a proper officer under the Customs Act. In support of the contention that he has been so entrusted with the functions of a proper officer under Section 28 of the Customs Act, Shri Sanjay Jain, learned Additional Solicitor General relied on a Notification No.40/2012 dated 2.5.2012 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers mentioned in Column (2), the Commissioner of Customs would be included as an officer entitled to perform the function under Section 28 of the Act conferred on a Deputy Commissioner or Assistant Commissioner but the notification appears to be ill-founded. The notification is purported to have been issued in exercise of powers under sub- Section (34) of Section 2 of the Customs Act. This section does not confer any powers on any authority to entrust any functions to officers. The sub-Section is part of the definitions clause of the Act, it merely defines a proper officer, it reads as follows:- 2. Definitions In this Act, unless the context otherwise requires, - (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 [Principal Commissioner of Customs or Commissioner of Customs]. 20. Section 6 is the only Section which provides for entrustment of functions of Customs officer on other officers of the Central or the State Government or local authority, it reads as follows:- 6. Entrustment of functions of Board and customs officers on certain other off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that:- 28. Notice for payment of duties, interest, etc. (1) When any duty has not been levied or has been shortlevied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may,- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, researchor charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short levied or part 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: Provided that where any duty has not been levied or has been shortlevied or the interest has not been charged or has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set aside. xxxxxxxxxxx 31. In the result, these appeals are allowed. The common order dated 19.12.2017 passed by the CESTAT, New Delhi in Customs Appeal Nos. 50098, 50099, 50100 and 50280/2017 is set aside. Consequently, the impugned demand notices issued against all the three appellants herein are also set aside. Further reliance has also been placed upon the judgment of the Division Bench of Karnataka High Court in Writ Petition No.10773 of 2018 dated 14.07.2021 titled Shri Mohan C. Suvarna Vs. Principal Commissioner of Customs to contend that once the show cause notice was bad in law then even the order passed in pursuance of the same was required to be set aside. The relevant portion of the judgment dated 14.07.2021 is reproduced herein below:- Writ petition No.10773/2018 and Writ Petition No.4628/2018 are taken up together and disposed off by a common order in light of the prayer sought for in both the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, the writ petitions are allowed. The Order-inoriginal SI.No.BLR-CUSTM-AIR-003/16-17 dated 27.02.2017 at Annexure-G in both the writ petitions are set aside while holding specifically that the show cause notice at Annexure-B dated 07.01.2008 is one that is not issued by the proper officer . The Authorities are at liberty to take out fresh proceedings as per law, in light of the discussion as above. Reliance has also been placed upon the judgment dated 19.04.2021 of this Court in CWP No.19871 of 2020 titled M/s Godrej Boyee Manufacturing Co. Ltd. Vs. Union of India others , the relevant portion of which is reproduced herein below:- CM-5413-CWP-2021 1. This is an application for preponing the date of hearing. 2. For the reasons recorded, the application is allowed. The main case is taken up for hearing today itself. Main case 1. This petition has been filed for quashing the impugned order-in-original No.04/CUS/ASR/PRV/2020 dated 17.08.2020 (Annexure P1), passed by the commissioner of customs (preventive), Amritsar respondent No.2. 2. On the last date, the following order was passed in CM5413-CWP-2021 :- This is an applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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