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TMI Blog2022 (7) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 2.6.2010 / 5.8.2010 (Annexure-J) and accordingly, they are set aside - Appeal allowed. - R/TAX APPEAL NO. 2591 of 2010 With CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2022 In R/TAX APPEAL NO. 2591 of 2010 - - - Dated:- 9-6-2022 - HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR AND HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Appearance: Mr. Paritosh Gupta, Counsel For M/s. Trivedi Gupta (949) for the Appellant(s) No. 1 Mr. Utkarsh R Sharma (6157) for the Opponent(s) No. 1 ORAL JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR) 1. This appeal under Section 130 of the Customs Act, 1962 is directed against the order of the Central Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ) dated 2.6.2010 / 5.8.2010 (Annexure-J) whereunder the appeal filed by the respondent (hereinafter referred to as the Department ) challenging the Order-in-Original (hereinafter referred to as OIO ) dated 30.9.2005 came to be allowed and the said OIO came to be set aside. This appeal came to be admitted on 12.1.2012 to consider the following substantial questions of law: 1. Whether the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exure-J) would disclose that Order-inOriginal dated 30.9.2005 which was a off-shoot of the show cause notice dated 27/29.8.2002 and subject matter of the present appeal and the very jurisdiction of the authority to issue show cause notice is under challenge in this appeal by raising a plea in that regard, we are of the considered view that following point would arise for our consideration. Whether the show cause notice dated 27/29.8.2002 (Annexure-D) is issued by a person who is not competent to do so? or said power was not authorised to issue such show cause notice? BRIEF BACKGROUND OF THE CASE: 5. Appellant by virtue of being a Star Trading House Certificate Holder issued by the the Government of India, had applied for 3 Quantity Based Advance Licences and was granted. The subject matter of this appeal relates to 2 advance licences dated 11.3.1997 and 27.3.1997 only. As it is the duty and obligation of the advance licencee, appellant is said to have procured various marine products under the advance licences as merchant exporter. In fact, appellant is said to have started exporting marine products in anticipation of the advance licences being granted. Against the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue relating to the authority to issue the show cause notice, said issue is now at large before the Hon ble Apex Court in view of the review petition having been filed. However, the fact remains that there is no stay of the order or there being any order passed in review petition and as such, we have no other option but to hold that the said contention requires to be rejected and it stands rejected. 10. As noticed hereinabove, it is the contention of Mr. Paritosh Gupta, learned counsel appearing for the appellant that issue relating to who would be the proper officer to issue the show cause notice has been laid to rest by the Hon ble Apex Court in the case of Canon India Private Limited by holding as under: 9. The question that arises is whether the Directorate 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. under Section 28(4)of the Act. This Section empowers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. 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 exercised by the same officer or his successor and not by another of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Functions under Section of the Customs Act, 1962 (1) (2) (3) 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; . 21. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months , the words five years were substituted. 18. It is plain from the provision that the proper officer being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2020 whereunder similar issue was involved viz. the show cause notice dated 30.10.2013 which was the subject matter of the matter in the said appeal was also issued by the Additional Director General of the Directorate of Revenue Intelligence (Zonal Unit), Ahmedabad and it came to be held that principles enunciated in Canon India Private Limited would squarely cover the issue in favour of the respondent therein and accordingly dismissed the appeal by order dated 20.1.2022. 13. In the instant case, show cause notice dated 27/29.8.2002 (Annexure-D) came to be issued by the Additional Director General, DRI, Mumbai would be without jurisdiction in the teeth of principles enunciated by the Hon ble Apex Court referred to supra and as such the point formulated hereinabove deserves to be answered in favour of the appellant and against the respondent, as it goes to the root of the matter and consequently the order of the Tribunal cannot be sustained. 14. However, we make it clear that substantial questions of law framed in the background of the facts obtained in the present case are kept open and no opinion is expressed on the same since the very issuance of show cause notice by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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