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TMI Blog2004 (6) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs) for the whole of India. Once he is appointed as Collector of Customs, he will have jurisdiction to exercise all the functions which are to be exercised by the Collector of Customs. The notification does not contain any rider in the matter of exercising jurisdiction by the officers of DRI thus appointed as Customs Officers. The only limitation is with reference to the geographical area. In the case of ADG of DRI such limitation is also not there. He has jurisdiction all over India. In the present case, ADG of DRI having been appointed as Customs Collector shall have the powers of a Customs Collector and can discharge functions as proper officer u/s 28(1). We are also of the view in all cases where the officers of DRI are appointed as Customs officers, they will have jurisdiction to discharge functions as a proper officer in relation to matters where Customs officers are notified as proper officer . The question referred is answered as above in favour of the Revenue and against the assessee. The appeals are returned to the regular bench for hearing. X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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." The above would show that notice under Section 28(1) has to be issued by the 'proper officer'. The term 'Proper Officer' has been defined under Section 2(34) of the Customs Act as follows:- "'proper officer', in or in relation to any functions to be performed under the Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs." It is the case of the appellant that for an officer to exercise jurisdiction under Section 28(1) as 'proper officer' he has to be specifically designated as a 'proper officer' to exercise the functions under Section 28(1). Additional Director, DRI has not been notified as a 'proper officer' to exercise jurisdiction under Section 28(1) and therefore the show cause notice under Section 28(1) is bad in law for lack of jurisdiction. 4. The learned DR would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that Assistant Director, DRI is not a proper officer empowered to issue notice under Section 28(1). For the purpose of being designated as proper officer he must have been assigned those functions by Board or Collector of Customs. The Assistant Director, DRI has been designated as Assistant Collector of Customs by virtue of Notification No. 19/90, dated 26-4-90 which may entitle him to perform other functions which could be performed by the Assistant Collector. But going by the definition of the term 'proper officer' under Section 2(34) only such of the officers who are specifically assigned the work of levy and collection of duty, can issue show cause notice in their capacity of the proper officer. When no such specific assignment of such duty either by the Board or the Commissioner of Customs, the Assistant Director, DRI cannot issue notice contemplated under Section 28(1). It was also held that to issue show cause notice invoking extended period of limitation 28(1) the power is given only to the Collector of Customs (now Commissioner of Customs) by the Board under Circular dated 14-5-92. The subject notice having not been issued by the jurisdictional Commissioner bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 28. Reliance was placed on CC v. Poona Roller and Bakemen's Home Products (Pvt.) Ltd. The Tribunal after observing that there is substantial force in the contention raised followed the decision in CC v. Poona Roller and Bakemen's Home Products (Pvt.) Ltd. Thereafter, it was held as follows:- "6(c)......The theory of 'committee of courts' postulates that when there are two or more courts having parallel jurisdiction over the same matter, as in the present case i.e. the Commissioner of Customs and the ADG of the DRI exercising concurrent jurisdiction and powers of the Customs Officer, then the jurisdiction of the second and the other authorities are eclipsed when any one of the authorities has taken cognizance of a particular issue. In the present case, the four BEs have been filed in the Kochi Custom House for clearance of the imported goods and noted cognizance has therefore been taken by the proper officer of the Kochi Customs. Therefore, the jurisdiction of the DRI to take cognizance of the matter of issue of demand under Section 28 by issue of said show cause notice is automatically eclipsed till an order under Section 47 of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Department of Revenue) No. 186-Cus., dated 4th August, 1981 (as amended), the Central Government hereby appoints the officers mentioned in column (2) of the Table below to be the Collector of Customs, the officers mentioned in column (3) thereof to be Deputy Collectors of Customs, and officers mentioned in column (4) thereof to be Assistant Collectors of Customs for the areas mentioned in the corresponding entry in column (1) of the said Table : TABLE Area/Jurisdiction Designation of the officer (1) (2) (3) (4) Whole of India Addl. Director General, Directorate of Revenue Intelligence, Headquarters, New Delhi. All Dy. Directors, Directorate of Revenue, Intelligence posted at Headquarters. All Assistant Collectors/ Asstt. Directors in Directorate of Revenue Intelligence posted at Headquarters. Investigating Officers (Police)/Asstt. Directors (Police) and Investigating Officer (Income Tax)/Asstt. Director (Income Tax)." 11. In Durga Prasad a contention was raised by the appellant that Collector of Customs is not a proper officer as contemplated by sub-section (3) of Section 110 of the Customs Act and, therefore, he has no power to seize documents etc. Sub-section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer for the purpose of issuing a valid notice under Section 28(1) of the Customs Act, 1962 in respect of imports at Bangalore. Notice was held issued without jurisdiction for the reason that proper officer must be an officer who must be functioning within the jurisdictional Collectorate where the import in question has been effected. The above would show that the issue was in respect of territorial jurisdiction of a 'proper officer'. In Padma Nutrients Pvt. Ltd., the Tribunal took the view that DRI had jurisdiction to seize the goods, carry out investigations and issue show cause notice under the Customs Act. The Bench noted that the show cause notice issued by DRI had directed the party to show cause to the Commissioner of Customs. In Kandla Clearing Agency P. Ltd., a Bench of this Tribunal took into consideration all the decisions where it has been held that show cause notice cannot be issued by DRI. It has been held as follows :- "However, as pointed out by the ld. DR, all these cases relate to a situation where the show cause notices were issued by the Asstt. Director, DRI and the Tribunal has held that AD, DRI being not a proper officer of customs, had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that when the Addl. Director General of DRI is equated to Collector of Customs, it is opened to him to exercise all powers invested with the Collector including the issue of show cause notice under Section 28(1) invoking the larger period. 16. The sheet anchor of the objection raised by the assessee regarding jurisdiction of Additional Director General, DRI in issuing show cause notice under Section 28(1) is that he is not a 'proper officer' as required under Section 28(1). According to the assessee it is not sufficient that the Additional Director General, DRI is appointed as Customs Officer equivalent to Collector of Customs. It is further required that by a separate notification he has to be declared as 'proper officer' for functioning under Section 28(1). In the absence of such specific assignment he cannot function as proper officer. We are not able to accept the above contention. An officer of the Customs who has been assigned certain functions which are to be performed under the Act is a 'proper officer'. Such assignment can be done by the Board or the Commissioner of Customs. It is not in dispute that under Notification 19/90 Additional Director G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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