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TMI Blog2022 (4) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for Central Goods and Service Tax/Central Excise, Kanpur. 3. The challenge raised in this writ petition is to the jurisdiction of the Commissioner, CGST and Central Excise, Kanpur, the Respondent No.4 to adjudicate the show cause notice dated 22.06.2011 issued by the Commissioner of Customs (Expert) Jawahar Lal Nehru, Customs House, Nhava Sheva, Tal Vran, District Raigarh, Maharashtra, Respondent No.2, under the Customs Act, 1962. The challenge is based on the premise that the Respondent No.4 is neither a proper officer nor is competent to pass any order under the Customs Act, 1962 in as much as the Respondent No.4 was merely assigned the jurisdiction by the order of the Board dated 20.11.2012 and cannot, therefore, be an officer appointed under Section 4(1) of the Customs Act, 1962. Further, the Parliament in its wisdom has enacted the Central Goods and Service Act, 2017 w.e.f. 01.07.2017 and consequent to such enactment, there remains no officer designated as "Commissioner of Customs, Central Excise and Service Tax, Kanpur". The Commissioner of CGST and Central Excise, Kanpur and "Commissioner of Customs, Central Excise and Service Tax Kanpur" are two different officers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2011 by the Respondent No.2 directing the petitioner, its Directors, its CHA's transferees of DFIA License and to whomsoever concerned to show cause as to why; (i) Goods having declared FOB value of Rs. 1,59,69,201/- should not be confiscated; (ii) Export duty amounting to Rs. 95,81,520/- should not be recovered along with interest; (iii) The amount of DFIA benefits availed against respective lincenses in respect of shipping Bill should not be denied and the licenses themselves may not be recommended for cancellation; (iv) Import duty forgone of Rs. 1,89,47,771/- should not be demanded and recovered along with interest and the goods so imported should not be confiscated; and (v) Penalty should not be imposed jointly and severally under Sections 114, 114A, 114AA and 117 of the Customs Act. 5. By order dated 20.11.2012 issued by the Board, the Respondent No.3 was appointed as Common Adjudicating Authority. However, the matter was kept pending and on 13.01.2020 a notice came to be issued by the Superintendent CGST and Central Excise, Kanpur Intimating the date of personal hearing before the Respondent No.3. The petitioner on receipt of the Notice is stated to have fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4 has yet been issued notifying the Respondent No.4 as an officer of Customs. Likewise under Section 6 of the Customs Act, the Central Government is empowered to entrust either conditionally or unconditionally, to any officer of the Central Government or State Government or a local authority any functions of the Board or any officer of Customs under the Act but till date no such notification has been issued by the Central Government entrusting the Respondent No.4 with any function of the Officer of Customs. 8. He further submits that the Respondent No. 4 was earlier appointed as "Commissioner of Central Excise" under the Central Excise Act, 1944 and upon the enactment of the Central Goods and Services Tax Act, 2017 (CGST Act), the Respondent No. 4 will be deemed to be an officer appointed under CGST Act by virtue of Section 3 of the CGST Act and thus cannot be called a ""Proper Officer"" or "adjudicating authority" under the Customs Act. Consequently, the assumption of jurisdiction to proceed under the impugned notice is wholly without jurisdiction and without authority of law. Reliance has been placed upon Para 22 of the decision of the Apex Court in Canon India Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with the queries made by the Principal Chief Commissioner, CGST and Central Excise, Lucknow dated 31.05.2018 and the order of the Board dated 28.11.2019, the Respondent No. 4 has the jurisdiction to adjudicate the impugned show cause notice. 11. Sri Amit Mahajan, learned Senior Standing Counsel for direct taxes who has appeared in Writ Tax No. 1096 of 2021 submits that the Notifications above mentioned have been considered by the Gujrat High Court in Swati Menthol & Allied Chem. Ltd. versus Jt. Dir., DRI, [2014 (304) ELT 21 (Guj.)], and in view of the judgment of the Gujrat High Court, the writ petition has no merit and is liable to be dismissed. 12. Sri Krishna Agarwal, learned counsel for the respondent-DRI, in opposition to the writ petitions, submits that the DRI Officers and Customs, in view of the Notification No. 31/1997 (N.T.) dated 07.07.1997 and Notification No. 15/2002-Customs (N.T.) dated 07.03.2002 (as amended) issued under Section 4 (I) of the Customs Act, 1962 appointing the Commissioner of Customs, Central Excise and Service Tax, Kanpur as officer of Customs, such officers are the "Proper Officer"s within the meaning of Section 2 (34) of the Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the respondent No.2. 14. In order to answer the questions aforesaid, it would be apt to consider certain provisions of the Customs Act, 1962 and refer to circulars and Notifications issued by the CBE & C. Section 2(34) of the Customs Act, 1962 defines the term "Proper Officer" as under:- "2(34) "proper officer", in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the [Principal Commissioner of Customs or Commissioner of Customs]" 15. The term "Proper Officer" is used at various places under the Act, under Section 17 it is "Proper Officer" who can verify the self-assessment of goods and examine or test any imported goods or exported goods as may be necessary. Likewise under Section 18 it is the "Proper Officer" who may undertake the exercise of provisional assessment and direct the importer to pay difference in duty or furnish security as deemed fit for provisional release of the goods. Section 28 of the Customs Act pertains to recovery of duties not levied or short-levied or erroneously refunded and provides for a complete mechanism for recovery of duties not levied or short-levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its decision holding that only such Custom Officers who have been assigned the specific functions of assessment and reassessment of duty either by the board or the Commissioner of the Customs in terms of Section 2(34) in the jurisdiction at area where the import concerned has been affected, who is competent to issue notice under Section 28 of the Act. 18. Perhaps since the decision of the Hon'ble Supreme Court in the case of Sayed Ali (Supra) would upset large number of pending and even concluded proceedings, the Legislature in its wisdom introduced sub- Section (11) of Section 28, which provides as under:- "(11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any Court of law, Tribunal or other authority, all persons appointed as officers of Customs under subsection (1) of section 4 before the sixth day of July, 2011 shall be deemed to have and always had the power of assessment u/s 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section." 19. The Board in its Circular dated 23.09.2011, in connection with the newly added sub-Section (11) of Section 28, clarified as under:- " *** * ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- "...... In exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 38/63-Customs, dated 1st February, 1963 the Central Government hereby appoints the following persons to be the Officers of Customs, namely:- 1. Appraisers, Examiners, Superintendent Customs (Preventive), Preventive Officers, Women Searchers, Ministerial Officers and Class IV Officers in the Customs Department in any place in India. 2. Superintendents, Inspectors, Women Searchers, Ministerial staff and Class IV staff of Central Excise Department, who are for the time being posted to a Customs port, Customs airport, Land-Customs station, Coastal port, Customs preventive post, Customs Intelligence post or a Customs warehouse. 3. Superintendents, and Inspectors of Central Excise Department in any place in India. 4. All Officers of the Directorate of Revenue Intelligence. 5. All Officers of the Narcotics Control Bureau. 6. All Intelligence Officers of the Central Economic Intelligence Bureau. 23. Under Notification dated 07.03.2002, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Deputy Commissioners or Assistant Commissioners of Central Excise. [F. No.437/143/2009-Cus.IV] (Vikas) Under Secretary to the Government of India" 25. Under the Notification dated 02.05.2012 the Central Board of Excise and Customs assigned various officers mentioned in Column No. 2 of the Table corresponding functions mentioned in column No. 3 thereof. Relevant portion of the Table reads as under:- Sl. No. Designation of the officers Functions under Section of the Customs Act, 1962 *** *** 4. Deputy Director or Assistant Director in the Directorate General of Revenue Intelligence and Directorate General of Central Excise Intelligence (i) Section 28B; and (ii) Section 72 *** *** 6. Intelligence Officer in the Directorate General of Revenue Intelligence and Directorate General of Central Excise Intelligence (i) Section 37; (ii) Section 100; (iii) Section 103; (iv) Section 106; (v) Section 106A; (vi) Sub-sections (1) and (3) of Section 110; (viii) Section 144; and (ix) Section 145 *** *** 26. A perusal of the notification dated 02.05.2012, however, reveals that officers of the Directorate of Revenue Intellig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Model Exims, Kanpur 5 DRI F.No/VIII/DRI/LZU/2 6/26/2008/Allied Leather dated.07.04.2011 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Allied leather Finishers Pvt. Ltd., Kanpur 6 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Seema dated.08.04.2011 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/sSeema Exports, Kanpur 7 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Homera Dt. 11.04.2011 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Homera Tanning Industries Pvt. Ltd., Kanpur 8 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Super/292-304 Dt. 21.04.2011 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Super Tannery Ltd., Kanpur 9 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Everest Dt. 26.04.2011 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Everest Tannery Pvt. Ltd. Kanpur 10 C.No.VIII/HQ/10/AC E/Adj./742/11/2779 Dt. 13.05.2011 (a) The Commissioner of Customs (Export) IGI Airport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, Lucknow Zonal Unit - Lucknow. M/s Superhouse Ltd., 19 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Penza / 1259 to 1268 Dt.26.09.2011 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Penza Tanning Ind. Pvt. Ltd., Kanpur 20 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Hafeez/ 1935-1940 Dt.09.12.2011 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Hafeez Sons Tannery Pvt. Ltd., Kanpur 21 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Homera Dt.12.01.2012 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Homera Tanners Pvt. Ltd. Kanpur 22 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Saba/2252- 2257 Dt.22.02.2012 Additional Director General, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Saba Exports, Kanpur 23 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Tanners/ 2727 to 2732 Dt.02.04.2012 Deputy Director, Directorate of Revenue Intelligence, Lucknow Zonal Unit - Lucknow. M/s Tanners India, Kanpur 24 DRI F.No.VIII/DRI/LZU/2 6/26/2008/Best/2278 to 2383 Dt.24/04/2012 Additional Director General, Directorate of Revenue Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Commissioner of Customs on the basis of the maximum duty evaded; (c) Cases other than at (a) above involving a single Customs Commissionerate would be assigned to the jurisdictional Commissioner of Customs; (d) Non-DRI cases pending with erstwhile Commissioner (Adjudication) would be assigned to Additional Director General (Adjudication), DRI; (e) Past DRI cases pending for adjudication with jurisdictional Commissioners of Customs would continue with these officers; (f) Remand cases would be decided by the original adjudicating authority. 3. All other cases of appointment of common adjudicator i.e. other than the cases mentioned in paragraph 2 above would continue to be dealt by the Board. This would include cases made by Commissionerates or cases made by DRI wherein the adjudicating officer is an officer below the level of Additional Director General (Adjudication), DRI. 4. Board has also decided that all the pending cases where common adjudicating authorities have not been appointed so far or where the common adjudicating authorities have been appointed but adjudications have not been done should be disposed of expeditiously in terms of aforementioned guidelines. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom time to time it is more than apparent that the Respondent No.2 had the jurisdiction to issue impugned show cause notice and the Respondent No.4 has the jurisdiction to adjudicate the same. The show cause notice under Section 28(1) could be issued by the "Proper Officer". A "Proper Officer" is one, who is defined in Section 2(34) as the officer of Customs, either by the Board or by the Commissioner of Customs, who is assigned specific functions. 33. In such view of the matter, we find substance in the submissions made by the learned counsel representing the respondents and, accordingly, hold that the Respondent No.2 had the jurisdiction to issue impugned show cause notice. At the same time we hold that the Respondent No.4 has the jurisdiction to adjudicate the show cause notices. Our conclusion is supported by the decision rendered by the High Court of Gujarat in the case of Swati Menthol and Allied Chemical Ltd. Vs. Joint Director, Directorate of Revenue Intelligence, reported in 2014 (304) ELT 21 (Gujarat). 34. The relief nos. a and b, as claimed by the petitioner, cannot be granted and the same are declined. So far as the alternative relief claimed by the petitioner for iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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