TaxTMI 
TaxTMI 
2021 (10) TMI 598
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....in this matter Show Cause Notice has been issued by Additional Director General (DRI), Ludhiana who is not a proper Officer to issue Show Cause Notice under Section 28 (4) read with Section 2 (34) of Customs Act, 1962. Therefore, impugned order is to be set aside. In support of his contention, he relied on the decisions as follows:- 1. Canon India P. Ltd. vs. Commissioner of Customs reported in 2021 - TIOL - 123 - SC - CUS - LB. 2. Commissioner of Customs Kandla vs. M/s. Agarwal Metals & Alloys reported in 2021 - TIOL - 233 - SC - CUS - LB. 3. Quantum Coal Energy Pvt. Ltd. vs. Commissioner, Office of the Commissioner of Customs reported in 2021 - TIOL - 711 - HC - MAD - CUS. 4. Steelman Industries v....
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....h the functions of a proper officer under Section 28 of the Customs Act, Shri Sanjay Jain, Learned Additional Solicitor General relied on a Notification No. 40/2012, dated 2-5-2012 issued by the Central Board of Excise and Customs. The notification confers various functions referred to in Column (3) of the notification under the Customs Act on officers referred to in Column (2). The relevant part of the notification reads as follows :- "[To be published in the Gazette of India, Extraordinary, Part I, Section 3, Sub-section (i)] Government of India Ministry of Finance (Department of Revenue) Notification No. 40/2012-Customs (N.T.) New Delhi, dated the 2nd May, 2012 S.O. (E). - In exercise of the powers conferred by su....
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....ise of powers under sub-section (34) of Section 2 of the Customs Act. This section does not confer any powers on any authority to entrust any functions to officers. The sub-Section is part of the definitions clause of the Act, it merely defines a proper officer, it reads as follows :- "2. Definitions. - In this Act, unless the context otherwise requires, - (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." 20. Section 6 is the only Section which provides for entrustment of functions of Customs officer on other officers of the Central or the....
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....ich does not confer any such power. 22. In the above context, it would be useful to refer to the decision of this Court in the case of Commissioner of Customs v. Sayed Ali and Another [(2011) 3 SCC 537 = 2011 (265) E.L.T. 17 (S.C.)] wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder :- "16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The Learned Counsel ....
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....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 misstatement 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....
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....n 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions." 23. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set aside and the ensuing demands are also set aside." 7. Although Review Petition filed by the Revenue has been pending before the Hon'ble Apex Court in the above said case but there after in the case of Commissioner of Customs Kandla vs. M/s. Agarwal Metals & Allo....