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TMI Blog2021 (11) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of the Supreme Court in Canon India Pvt. Ltd. vs. Commissioner of Customs [2021 (376) E.L.T. 3 (S.C.)] and Commissioner of Customs, Kandla vs. M/s. Agarwal Metals and Alloys [2021 (9) TMI 316- Supreme Court]. 3. Shri Manoj Das, learned authorised representative appearing for the Department, however submitted that the Additional Director General, DRI had the jurisdiction to issue the show cause notice and also submitted that the Department has filed a review petition against the judgment of the Supreme Court in Canon India on 07.04.2021 and it is pending. Learned authorised representative, therefore, submitted that the hearing of this appeal may be deferred. Learned authorised representative also submitted that the notice has been issued both under sections 28 and 124 of the Customs Act and, therefore, even if the notice issued under section 28 is held to be without jurisdiction, the notice issued under section 124 of the Customs Act would still survive. 4. The submissions advanced by learned counsel for the parties have been considered. 5. The first issue that arises for consideration is whether the Additional Director General, DRI had the jurisdiction to issue the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer but that proper officer alone. We find it completely impermissible to allow an officer, who has not passed the original order of assessment, to re-open the assessment on the grounds that the duty was not paid/not levied, by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28 (4) to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake re-assessment [which is involved in Section 28 (4). 15. It is obvious that the re-assessment and recovery of duties i.e. contemplated by Section 28(4) is by the same authority and not by any superior authority such as Appellate or Revisional Authority. It is, therefore, clear to us that the Additional Director General of DRI was not "the" proper officer to exercise the power under Section 28(4) and the initiation of the recovery proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid decision of the Supreme Court in Canon India was subsequently followed by the Supreme Court in Agarwal Metals and Alloys and the judgment is reproduced below: "Delay condoned. In view of decision dated 09.03.2021 of three judge Bench of this Court in Civil Appeal No. 1827 of 2018 titled as "M/s. Canon India Private Ltd. vs. Commissioner of Customs" reported in 2021(3) SCALE 748, these appeals must fail as the show cause notice(s) in the present cases was also issued by Additional Director General (ADG), Directorate of Revenue Intelligence (DRI), who is not a proper officer within the meaning of Section 28(4) read with Section 2(34) of the Customs Act, 1962. Hence, these appeals stand dismissed. However, dismissal of these appeals will not come in the way of the competent authority to proceed in the matter in accordance with law. Pending application(s), if any, stand disposed of." 8. Apart from the aforesaid two decisions of the Supreme Court in Canon India and Agarwal Metals and Alloys, the High Courts have also set aside proceedings where show cause notices were issued by the Director of Revenue Intelligence. 9. The Bombay High Court in Kitchen Essentials & O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hearing should be adjourned and in view of the decision of the Supreme Court in Canon India, set aside the order for the reason that the show cause notice had not been issued by the proper officer. 12. The Punjab and Haryana High Court in M/s. Steelman Industries vs. Union of India and Others [2021 (8) TMI 1236- Punjab and Haryana High Court] also, in view of the decision of the Supreme Court in Canon India, allowed the Writ Petition and set aside the entire proceedings arising from the show cause notice as the Additional Director General, DRI was not the proper officer. 13. Various Benches of the Tribunal have also set aside the orders for the reason that the show cause notices were not issued by the proper officer, since they were issued by the Department of Revenue and Intelligence. The decisions are: (i) Principal Commissioner, Customs, Acc Import Commissionerate New Customs House vs. Dish TV India Limited, Rajeev Dalmia and Virender Targa (Vice-Versa) [2021 (10) TMI 771- CESTAT New Delhi ]; (ii) C. Magudapathy vs. Commissioner of Customs (Seaport-Export) [2021 (9) TMI 636- CESTAT Chennai ]; and (iii) M/s. Modern Insecticides Limited vs. Commissioner of Customs, Lu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty, it was observed that both aspects are so interlinked that segregating the issues may be neither feasible nor desirable. In Manohar Bros. (Capacitors) - 1996 (15) RLT 581, it was held that when demand of differential duty fails, the proceeding cannot survive. The decision of the Supreme Court in COCE v. H.M.M. Ltd. - 1995 (76) E.L.T. 497 (S.C.) that the question of penalty would arise only if the Department is able to sustain the demand of duty has to be taken into consideration. In the cases at hand, demand was raised under the proviso to Section 28(1) of the Act on the allegation of mis-declaration of value and the demand is found to be without jurisdiction. Proposals for confiscation and imposition of penalty are also based on the framework of alleged mis-declaration of value. The demand of duty on allegation of mis-declaration of value cannot be segregated from action of confiscation and penalty based also on mis-declaration of value. Consequently since the demand of duty fails, action for confiscation and penalty cannot survive. We hold so on the weight of authority referred to above." 19. Thus, for all the reasons stated above, the order dated 31.05.2012 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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