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TMI Blog2021 (11) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) TMI 178 - CEGAT, NEW DELHI] , the Tribunal held that the proposal for confiscation and penalty cannot be segregated from duty demand and, therefore, the proceedings for confiscation and imposition of penalty cannot be sustained. The order passed by the Commissioner of Customs (Adjudication) cannot be sustained and is set aside - appeal allowed - decided in favor of appellant. - CUSTOMS APPEAL NO. 897 OF 2012 - A/87096/2021 - Dated:- 9-11-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms. Pooja Reddy, Advocate for the Appellant Shri Manoj Das Authorized Representative of the Department ORDER This appeal has been filed by Appex International [the appellant] to assail the order dated 31.05.2012 passed by the Commissioner of Customs (Adjudication), by which the demand raised in the show cause notice dated 30.01.2009 issued by the Additional Director General, Directorate of Revenue and Intelligence [Additional Director General, DRI], Mumbai, under sections 28 and 124 of the Customs Act 1962 [the Customs Act] has been confirmed. 2. It has been submitted by Ms. Pooja Reddy, learned counsel appearing for the appellant that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. 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, cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power. xxxxxxxx 23. We, therefore, hold that the entire 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensuing demands are also liable to be set aside. 10. The Madras High Court in Quantum Coal Energy (P) Ltd. vs. The Commissioner, Office of the Commissioner of Customs, Custom House, Tuticorin [2021 (3) TMI 1034- Madras High Court ] observed as follows: 6. When the matter was taken up for hearing, the learned counsel appearing for the petitioner submitted that the issue is no longer res integra and that the Hon'ble Supreme Court in M/s. Canon India Private Limited V. Commissioner of Customs (2021-VIL-34-SC-CU) had held that the expression the proper officer occurring in Section 28 of the Customs Act will only refer to the assessing officer who passes the original order making assessment. xxxxxxxx 7. In the case also, the show cause notice was issued by the Additional Director General of DRI. The Hon'ble Supreme Court had held that he cannot be termed as the proper officer . Since the entire proceedings were initiated by an authority who lacked the jurisdiction, applying the aforesaid decision of the Hon'ble Supreme Court the order impugned in these writ petitions is quashed. 11. The Karnataka High Court in Shri Mohan C. Suvarna Director (Finance and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice was also issued under section 124 of the Customs Act for confiscation of the goods under section 111 and imposition of penalty under section 112 of the Customs Act and, therefore, the order to this extent is not bad in law. 17. Learned counsel appearing for the appellant, however placed reliance upon a decision of the Tribunal in Bakeman s Home Products Pvt. Ltd. vs. Collector of Cus., Bombay [1997 (95) E.L.T. 278 (Tribunal) ] and contended that the proposal for confiscation of goods and imposition of penalty cannot be segregated from the duty demand and, therefore, if the duty demand fails as the show cause notice was not issued by the proper officer, the proceedings for confiscation and penalty cannot survive. 18. This submission advanced by learned counsel for the appellant deserves acceptance. In Bakeman s Home Products, the Tribunal held that the proposal for confiscation and penalty cannot be segregated from duty demand and, therefore, the proceedings for confiscation and imposition of penalty cannot be sustained. The relevant portion of the decision is reproduced below: 13. Only four of the decisions cited before us are relevant in the context of the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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