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TMI Blog2021 (12) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 20-12-2021 - K.R. SHRIRAM AMIT B. BORKAR, JJ. Ms. P.S. Cardozo a/w. Ms. Maya Majumdar for appellant. Mr. Rafique Dada, Senior Advocate a/w. Mr. Jaydeep Patel, Mr. Zubair Dada, Ms. Shilpa Balani and Ms. Parnari Shingala i/b. A.S. Dayal and Associates for respondent. ORAL JUDGMENT : (PER K.R. SHRIRAM, J.) 1 On 25th June 2014 this appeal was admitted and the following substantial questions of law were framed : (i) Whether in the facts and circumstances of the case and in law the Tribunal is justified in holding that the catalyst is different from consumable and therefore denial of benefit to the Respondent is not sustainable? (ii) Whether in the facts and circumstances of the case and in law the Tribunal is justified in holding that the policy will prevail over the customs notification when the Ministry of Finance, Govt. of India has every authority to regulate the customs duty benefit? (iii) Whether in the facts and circumstances of the case and in law the Tribunal is justified in holding that the extended period of limitation is not available despite the fact that the benefit of notification was availed by willfully mis-decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that by another Notification No.44/2011-Customs (N.T.) dated 6th July 2011, the Central Board of Excise and Customs has assigned the functions of the proper officer to Additional Director Generals, Additional Directors or Joint Directors, Deputy Directors or Assistant Directors in the Directorate General of Revenue Intelligence for the purposes of Section 17 and Section 28 of the said Act. The notification, for ease of reference, is scanned and reproduced hereinbelow : Ms. Cardozo further relied on a Circular No.44/2011-Customs dated 23rd September 2011 issued by the Central Board of Excise and Customs to submit that sub Section 11 in Section 28 of the said Act was brought in as an amendment with effect from 16th September 2011 and accordingly, show cause notices issued prior to 6th July 2011 by officers of Customs, which would include officers of Directorate General of Revenue Intelligence (DRI), stand validated since these officers are retrospectively recognized as proper officers for the purpose of Section 17 and Section 28 of the said Act. The said circular, for ease of reference, is scanned and reproduced hereinbelow : 4. Ms. Cardozo submitted that, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be the officer, who had in the first instance assessed and cleared the goods and, therefore, in the facts and circumstances of this case, can never be stated to be the proper officer. Mr. Dada further submitted that the Apex Court in Commissioner of Customs, Kandla V/s. Agarwal Metals and Alloys 2021-TIOL-233-SC-CUS-LB and the Division Bench of this Court in Kitchen Essentials and Ors. V/s. The Union of India and Ors. Writ Petition No.5154 of 2021 dated 26.10.2021 have held that the Additional Director General of DRI is not a proper officer within the meaning of Section 28(4) read with Section 2(34) of the said Act. 7. We have considered the judgment of the Apex Court in Canon India Private Limited (Supra) where paragraphs 9 to 16 read as under : 9. The question that arises is whether the Director of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power conferred by the statute, i.e., u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962. 13. 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. 14. 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 statute. It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone. As in this case, when the statute directs that the proper officer can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. It is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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