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TMI Blog2022 (3) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel was correct in pointing out that in Canon India [ 2021 (3) TMI 384 - SUPREME COURT ] Hon ble Supreme Court had held that officers of DRI are not proper officers to issue the SCN demanding duty under section 28 as per section 2(34). Learned departmental representative was correct in pointing out that under consideration in Canon India was the question whether DRI officers were proper officers under section 2(34) and not whether they were proper officers under section 28(11). As per section 28(11), all persons appointed as Customs officers under section 4(1) prior to 6th July 2011 were proper officers for assessment under section 17 and proper officers under section 28. This provision was not in question in Canon India but it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adjudicating the SCN dated 22.5.2014 issued by ADG, DRI who is not competent to issue the SCN as per Canon India. Further, the SCN itself was the culmination of investigations including searches, seizures, and recording of statements under the Customs Act by the DRI officers and DRI officers have no jurisdiction to perform any functions under the Customs Act Canon India. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ining of the foreign exchange to the suppliers separately. Accordingly a Show Cause Notice [SCN] dated 22.5.2012 was issued by the Additional Director General [ADG] of DRI answerable to the Commissioner of Customs (Port) Kolkata proposing to reject the declared assessable value, re-assess the duty leviable and recover the differential duty under section 28 from the importer along with interest and further proposing to impose penalties upon the importer, the Directors of the importer and the two Chartered Engineers. Adjudicating the SCN, the Commissioner passed the impugned order confirming the demand of duty, interest and imposing penalties as proposed in the SCN issued by the DRI. 3. Learned counsel representing the appellants Konar and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be proper officers for assessment under section 17 of the Customs Act as well as the proper officers under section 28 as per Section 28(11). He submits that Section 28(11) was introduced through a retrospective amendment by the Parliament and its validity was upheld fully by Hon'ble High Court of Bombay in Sunil Gupta Vs. Union of India [2014-TIOL-1949-HC-MUM-CUS] and was upheld prospectively by Hon'ble High Court of Delhi in Mangáli Impex [2016 (335) ELT 605 (Del)]. The retrospective application of section 28(11) was held to be not valid by Hon'ble High Court of Delhi and on appeal by the Revenue, Hon'ble Supreme Court stayed [2017 (349) ELT A 98 (SC)] the judgment and order of Hon'ble Delhi High Court. Thus, as on today, section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms officers are appointed by the Government. Unless functions under the Customs Act were entrusted by the Government to DRI under section 6, they cannot perform such functions. b) DRI officers are not proper officers under section 2(34) because the notification issued by the CBEC was held to have been issued without the power to do so. c) Whenever, more than one officer has a concurrent jurisdiction over an area and a subject all of them cannot simultaneously exercise jurisdiction in the same case. If one is exercising the jurisdiction, others cannot. The power to issue a notice under section 28 is a power to reopen an assessment already done under section 17 and such a power is not inherent in anyone but is specially conferred by s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt Ltd. [ Dy. No. 7802/2020] that in the absence of entrustment of functions under section 6 by the Government, officers of DRI will not have jurisdiction to exercise the functions under the Customs Act. The relevant portion of this judgment is as follows: " In Canon India Pvt. Ltd. vs Commissioner of Customs, AIR 2021 SC 1699, a three-judge bench of this court has held that in the absence of an entrustment under section 6 of the Customs Act, 1962, an officer of the Directorate of Revenue Intelligence will not have jurisdiction to exercise the functions entrusted to Customs officers under various provisions of the Act. As a consequence of the above elucidation, the court held that the entire proceeding which was initiated by the Additio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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