TaxTMI 
TaxTMI 
2021 (11) TMI 665
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 114AA of the Customs Act. It also appropriates an amount of Rs. 6 crores paid by the appellant during investigation towards the duty liability under section 28 of the Customs Act. 2. Customs Appeal No. 51571 of 2019 has been filed by Neeraj Goel, Regional Marketing and Sales Manager of the Appellant, to assail the imposition of penalty of Rs. 50 lakhs under section 112(a)(b) of the Customs Act and penalty of Rs. 50 lakhs under section 114AA of the Customs Act. 3. It has been submitted by Shri B.L. Narasimhan, learned counsel appearing for the appellants that the Additional Director General, Directorate of Revenue Intelligence [DRI] did not have the jurisdiction to issue the show cause notice as he was not the proper officer under section 28 of the Customs Act to issue the notice and in support of this contention learned counsel placed reliance upon decisions of the Supreme Court in Canon India Pvt. Ltd. vs. Commissioner of Customs [2021 (376) E.L.T. 3 (S.C.)] and Commissioner of Customs, Kandla vs. M/s. Agarwal Metals and Alloys [2021 (9) TMI 316- Supreme Court]. 4. Shri Sunil Kumar, learned authorised representative appearing for the Department, however submitted that the Add....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute. 14. It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone. As in this case, when the statute directs that "the proper officer" can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. We find it completely impermissible to allow an officer, who has not passed the original order of assessment, to re-open the assessment on the grounds that the duty was not paid/not levied, by the original officer who had decided to clear the goods and who was competent and authorised to make the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ms in exercise of non-existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power. xxxxxxxx 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." (emphasis supplied) 7. It would thus be seen that the Supreme Court in Canon India held that the entire proceedings initiated by the Additional Director General, DRI by issuance of a show cause notice was without any authority of law and was, therefore, liable to be set aside. 8. The aforesaid decision of the Supreme Court in Canon India was subsequently followed by the Supreme Court in Agarwal Metals and Alloys and the judgment is reproduced below: "Delay condoned. In view of decision dated 09.03.2021 of three judge Bench of this Court in Civil Appeal No. 1827 of 2018 titled as "M/s. Canon India Private Lt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssing officer who passes the original order making assessment. xxxxxxxx 7. In the case also, the show cause notice was issued by the Additional Director General of DRI. The Hon'ble Supreme Court had held that he cannot be termed as "the proper officer". Since the entire proceedings were initiated by an authority who lacked the jurisdiction, applying the aforesaid decision of the Hon'ble Supreme Court the order impugned in these writ petitions is quashed." 12. The Karnataka High Court in Shri Mohan C. Suvarna Director (Finance and Admin) M/s Givaudan India Pvt. Ltd. vs. The Principal Commissioner of Customs, Additional Director General Directorate of Revenue Intelligence, Bangalore [2021 (8) TMI 178- Karnataka High Court] did not accept the plea of the Department that since the review petition had been filed by the Department in Canon India, the hearing should be adjourned and in view of the decision of the Supreme Court in Canon India, set aside the order for the reason that the show cause notice had not been issued by the proper officer. 13. The Punjab and Haryana High Court in M/s. Steelman Industries vs. Union of India and Others [2021 (8) TMI 1236- Punjab and Hary....