2021 (10) TMI 598
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....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 vs. Union of India & Ors CWP No.11287 of 2015 decided on 04.08.2021. ....
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....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 sub-section (34) of section 2 of the Customs Act, 1962 (52 of 1962), the Central Board of Excise and Customs, hereby ....
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....ers. 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 State Government or local authority, it reads as follows :- "6. Entrustment of functions of Board and customs officers on certain other officers. - The Central Government ma....
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....C 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 argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clea....
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....ter 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 other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause....