2022 (3) TMI 703 - AT - Customs

Tribunal Invalidates Show Cause Notice, Grants Exemption

The Tribunal held that the Show Cause Notice (SCN) issued by DRI officers under Section 28 of the Customs Act, 1962 was without authority of law, as only ... Jurisdiction - proper officer to issue SCN - competence of DRI to issue SCN - fraudulent evasion of Customs duty - preparation of false documents - benefit of Notification No. 21/2002-Cus. Dated 1.3.2002 - HELD THAT:- There is no need to examine the merits of the case, if the SCN itself was issued by an officer competent to do so. The SCN gets vitiated and so will any order deciding the proposals in such an SCN. Hon‟ble Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] held that DRI officers were held to be not proper officers for issue of SCN demanding duty under Section 28 in the Canon India. Since the SCN itself was issued without authority of law, the entire proceedings get vitiated. The ratio of Canon India was followed in several cases and demands were set aside by the Supreme Court, various High Courts and this Tribunal only on the ground that the SCN was issued under Section 28 by the officers of DRI. Undisputedly, the bills of entry in this case were not assessed by the officers of DRI but by the officers of the Custom house. Only that officer who has assessed the Bills of Entry in the first place or his successor in office was “the proper officer‟ who, if he was subjectively satisfied that some duty had escaped assessment, could have issued the SCN. As the SCN has been issued by officer of DRI who is not competent to issue it, the impugned order deciding such an SCN cannot be sustained and needs to be set aside. Appeal allowed - decided in favor of appellant. Issues Involved:1. Competence of DRI officers to issue a Show Cause Notice (SCN) under Section 28 of the Customs Act, 1962.2. Entitlement of the appellant to the benefit of the exemption notification for imported crude palmolein oil.3. Validity of the impugned order confiscating goods, imposing fines, and penalties.Issue-wise Detailed Analysis:1. Competence of DRI Officers to Issue SCN:The appellant contested the competence of DRI officers to issue an SCN under Section 28 of the Customs Act, 1962, citing the Supreme Court judgment in Canon India [2021 (3) TMI 384 - Supreme Court]. The Tribunal held that the SCN issued by DRI officers was without authority of law, as only the officer who assessed the Bills of Entry or his successor could issue such an SCN. This position was supported by several judgments, including:- Commissioner of Customs vs Agarwal Metals and Alloys [2021 (9) TMI 316 - Supreme Court]- Quantum Coal Energy Pvt. Ltd vs Commissioner of Customs [2021 (3) TMI 1034 - Madras High Court]- Givaudan India Pvt. Ltd. vs Commissioner of Customs [2021 (8) TMI 178 - Karnataka High Court]- Godrej & Boyce Manufacturing Co. Ltd. vs UOI [Punjab & Haryana High Court Order dated 19.4.2021 in Civil Writ Petition No. 19871 of 2020]- Principal Commissioner, Customs, ACC Import vs Dish TV India Limited [2021 (10) TMI 771 - CESTAT, New Delhi]- Evershine Customs (C&F) Pvt. Ltd vs Commissioner of Customs [2021 (8) TMI 906 - CESTAT, New Delhi]2. Entitlement to Exemption Notification:The appellant, M/s. Jhoola Refineries Ltd (Jhoola), claimed exemption under Notification No. 21/2002-Cus dated 01/03/2002, as amended by Notification No. 20/2004-Cus dated 16.1.2004, for importing industrial-grade crude palmolein oil for soap manufacture. Jhoola argued that it followed all required procedures, including obtaining a Registration Certificate and approval of factory plans from the Central Excise Division. Despite this, the DRI concluded that Jhoola had no soap manufacturing facility and issued an SCN proposing confiscation, denial of exemption, and recovery of differential duty.3. Validity of Impugned Order:The impugned order dated 31 July 2008, passed by the Commissioner of Central Excise and Service Tax, Allahabad, confiscated the imported crude palmolein oil, imposed a redemption fine, demanded duty with interest, and imposed penalties on Jhoola and its Director, Shri M K Jhunjhunwala. The Tribunal found that the SCN was invalid as it was issued by DRI officers who were not competent to do so. Consequently, the impugned order based on such an SCN was set aside.Conclusion:The Tribunal concluded that since the SCN was issued by an officer not competent to do so, the entire proceedings were vitiated. The impugned order was set aside, and both appeals were allowed with consequential relief to the appellants. The miscellaneous applications were also disposed of accordingly.