TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 560
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....ice, as held by Hon'ble Supreme Court in the case of Canon India Pvt.Ltd. Vs. Commissioner of Customs (2021 (376) E.L.T. 3 (SC)]. Thus, the proceedings suffer from jurisdictional error. (iii) The issue refers to the inclusion of licensing fee, advertising and marketing expenses and corporate marketing fee in the assessable value of the imported goods, viz. eyewears, sunglasses etc. 2. The Authorized Representative for the Revenue does not oppose the request for early hearing of the matter. However, it is brought to the attention of the Bench that the Revenue's Review Petition against the judgement of Canon India is pending before Hon'ble Supreme Court. 3. We have heard the learned Counsel for the Appellant and allow the prayer of the Appellant for early hearing. In our view, in light of the judgment of the Supreme Court, the matter itself can be taken up for final hearing on the limited issue of jurisdiction, without going into the merits of the case. 4. Heard both sides through video conferencing and perused the appeal records. 5. We find that the Appellant primarily had challenged that the jurisdiction of Additional Director General, DRI, Lucknow have no power to issue Show....
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....y of law and therefore the Appeal also deserve to be allowed on this ground itself. 8. The said issue has been dealt by the Supreme Court in the case of Canon India Pvt.Ltd. (supra) and held thus :- 18. The next step is to see whether an Additional Director General of the DRI who has been appointed as an officer of Customs, under the notification dated 7-3-2002, has been entrusted with the functions under Section 28 as a proper officer under the Customs Act. In support of the contention that he has been so entrusted with 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 M....
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....e Central Government may, by notification in the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under this Act." 21. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 4-12-1957 issued by the Ministry of Finance and Customs officers who, till 11-5-2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2(34) of the Customs Act. The notification is obviou....
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....harged 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 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 why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the 'proper officer'. 19. Section 2(34) of the Act defines a 'properofficer', thus : '2. Definitions. - ...................... 'proper ....