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TMI Blog2024 (8) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... r by virtue of the Notification SO 2665(E), such officer had no power to detain the subject goods in terms of Section 110 of the Customs Act as the same is not a notified offence under the SEZ Act. In the absence of any notification issued by the Board authorizing the NSEZ officers below the rank of the jurisdictional Commissioner to seize the subject goods, the seizure of the subject goods was legally unsustainable and therefore, confiscation under Section 111(m) of the Customs Act pursuant to such seizure is also bad in law and therefore, is liable to be set aside - the subject vehicles which were made liable for confiscation under Section 115(2) of the Customs Act, and are in appeal is unwarranted for, since the subject vehicles were used for carrying the goods out of and into the NSEZ without the knowledge of the owner or person-in-charge of the subject vehicles which is a mandate as per the bare reading of Section 115 (2) of the Act. The confiscation of the goods and seizure of vehicles cannot sustain and it is hereby set aside - the penalty imposed on the Appellant is unwarranted - the impugned orders in both the appeals are set aside - appeal allowed. - MR. P.K. CHOUDHARY, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty should not be imposed under Section 112(a) 112(b) and Section 114AA of the Customs Act. 6.1 On behalf of the Appellants, learned Advocate, took us through the statutory provisions and in particular Rules 2(1)(c) and 2(1)(zd) of the SEZ Rules. It is contended that Officers of Customs mentioned under Rules 2(1)(c) and 2(1)(zd) of the SEZ Rules are appointed under the SEZ Act to discharge functions as specified in the SEZ Rules and does not by the very fact of appointment confers powers and functions of Proper Officer or corresponding offices created under or operating under the Customs Act and that every Proper Officer is an Officer of customs but it cannot be said that every Officer of customs is a Proper Officer for the purposes of SEZ Act. They have placed reliance on the SEZ Instruction No.09/2011 dated 01.06.2011 issued by the Development Commissioner, SEZ, Karnataka and Kerala in respect of the role of the specified/authorized officers. The Development Commissioner stated that though Specified Officers in relation to an SEZ are drawn from the formations of and under the Board, it needs to be understood that this is a source of recruitment for the posts created in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Board or the Principal Commissioner of Customs or Commissioner of Customs; 3. Rule 2(1)(c) of the SEZ Rules RULE 2. Definitions. - (1) In these rules, unless the context otherwise requires, - (c) Authorized officer means an Inspector or Preventive Officer or Appraiser or Superintendent of Customs posted in the Special Economic Zone and authorized by the Specified Officer to discharge any of his functions under these rules; 4. Rule 2(1)(zd) of the SEZ Rules (zd) Specified Officer in relation to a Special Economic Zone means Joint or Deputy or Assistant Commissioner of Customs for the time being posted in the Special Economic Zone; 5. SEZ Instruction No. 09/2011 dated 01.06.2011 2. The Special Economic Zones Act, 2005 has created only one statutory authority in relation to Special Economic Zones but bearing in mind the specific task of handling of goods in a Special Economic Zone, the Special Economic Zones Rules, 2006 has recognized two other authorities, viz., Specified Officer and Authorized Officer. These authorities have been defined in Rule 2(zd) and Rule 2(c) of the Special Economic Zones Rules, 2006. As such officers are creations of the said Rules, their power and auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers Functions under Section of the Customs Act, 1962 (1) (2) (3) .. 6. Intelligence Officer in the Directorate General of Revenue Intelligence and Directorate General of Central Excise Intelligence. (vi) Sub-sections (1) and (3) of section 110; 7. Inspector of Customs and Central Excise or Preventive Officer or Examining Officer. (xiv) Sub-sections (1) and (3) of section 110; 6.3 The Learned Advocate has also challenged the imposition of penalty in the absence of it being notified offence under SEZ Act and has placed reliance on the following cases: 1. Mahindra Mahindra Ltd. Vs. Union of India 2022 (10) T.M.I 212, affirmed by Union of India Vs. Mahindra Mahindra Ltd, 2023 (8) T.M.I 135. 2. Acer India (Pvt.) Ltd. Vs. Commissioner of Customs (Import), Chennai, 2024 (1) T.M.I 147. 3. Acer India (Pvt.) Ltd. Vs. Commissioner of Customs (Audit), Chennai, 2024 (5) T.M.I 478. 7. Meanwhile, the Learned Authorized Representative appearing for the Revenue, reiterated the findings of the Commissioner, and has placed reliance on Notification No.110/2003-Cus (N.T.) dated 08.12.2003) and Notification No.40/2012-Cus (N.T.) dated 02.05.2012 read with Notification No. S.O. 2667(E) dated 05.08.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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