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TMI Blog2021 (11) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... . Although Review Petition filed by the Revenue is pending before the Supreme Court in the above said case but thereafter in the case of COMMISSIONER OF CUSTOMS, KANDLA VERSUS M/S. AGARWAL METALS AND ALLOYS [ 2021 (9) TMI 316 - SUPREME COURT] held that the Additional Director General, (DRI) is not a proper Officer within the meaning of Section 28(4) read with Section 124 of Customs Act, 1962. The Additional Director General, DRI, Lucknow is not a proper Officer to issue Show Cause Notice under Section 28(4) read with Section 124 of Customs Act, 1962, the impugned proceedings are set aside - appeal allowed. - Customs Miscellaneous Application No.75135 of 2021 (EH) (On behalf of Appellant) And Customs Appeal No.75677 of 2020 - MISCELLANEOUS ORDER NO. 75241/2021 FINAL ORDER NO. 75731/2021 - Dated:- 28-10-2021 - HON BLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) HON BLE SHRI P.V.SUBBA RAO, MEMBER(TECHNICAL) Shri B.L. Narshiman Shri Rahul Tangri, Advocates for the Appellant Shri A.Roy, Authorized Representative for the Respondent ORDER P.K.CHOUDHARY : The present Miscellaneous Application has been filed by the Applicant/Appellant for early listing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Metals And Alloys [2021 (378) E.L.T. 7 (S.C.)] (b) Givaudan India Pvt.Ltd. Vs. Pr.CC, ADG, DRI, Bangalore [2021 (8) TMI 178 Karnataka High Court] (c) Quantum Coal Energy (P) Ltd. Vs. CC, Tuticorin [2021-VII-229-MAD-CU] (d) CC Vs. Dish TV India Limited [2021 (10) EMI 771-CESTAT New Delhi] (e) BaburamPremchandVs. Commissioner of Customs, Chennai [2021 (10) TMI 820 CESTAT CHENNAI] (f) Hi-Tec Corporation Vs. Commissioner of Customs, Chennai [2021 (8) TMI 1214 CESTAT CHENNAI] (g) Evershine Customs (C F) Pvt.Ltd. And The Two Step Trading Co. Vs. Commissioner of Customs, New Delhi [2021 (8) TMI 906 CESTAT New Delhi] (h) Modern Insecticides Ltd. Vs. Commissioner of Customs, Ludhiana [2021 (10) TMI 598 CESTAT CHANDIGARH] (i) Shri RajendraSekaria, Balaji Solutions Pvt.Ltd. Vs. CC(ACC Impor), Mumbai [2021 (6) TMI 628 CESTAT MUMBAI] 7. Recently, Hon ble Supreme Court in the matter of Civil Appeal No.1827/2018; M/s. Canon India Pvt.Ltd. vs. Commissioner of Customs, vide Judgement dated 09.03.2021 while following its own decision in the matter of Commissioner of Customs vs. Sayed Ali Anr.; (2011) 3 SCC 537 has laid down tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Commissioner of Customs (i) Section 33 2. Additional Commissioner or Joint Commissioner of Customs (i) Sub-section (5) of section 46; and (ii) Section 149 3. Deputy Commissioner or Assistant Commissioner of Customs and Central Excise (i) .. (ii) .. (iii) .. (iv) .. (v) .. (vi) Section 28; 19. It appears that a Deputy Commissioner or Assistant Commissioner of Customs has been entrusted with the functions under Section 28, vide Sl. No. 3 above. By reason of the fact that the functions are assigned to officers referred to in Column (3) and those officers above the rank of officers 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .)] wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder :- 16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The Learned Counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival 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, intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer . 20. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty 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 inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. 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. 9. Although Review Petition fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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