TaxTMI 
TaxTMI 
2021 (12) TMI 489
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....e dated 21.10.2016 issued by the Additional Director General, Directorate of Revenue and Intelligence [Additional Director General, DRI], Chandigarh, under sections 28 of the Customs Act 1962 [the Customs Act] has been confirmed. 2. It has been submitted by Shri B.K. Singh assisted by Ms. Vandana Singh, learned counsel appearing for the appellant that the Additional Director General, 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 ....
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.... or short paid after the goods have been assessed and cleared for import, is broadly a power to review the earlier decision of assessment. Such a power is not inherent in any authority. Indeed, it has been conferred by Section 28 and other related provisions. The power has been so conferred specifically on "the proper officer" which must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods i.e. Deputy Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision t....
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....w on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake re-assessment [which is involved in Section 28 (4). 15. It is obvious that the re-assessment and recovery of duties i.e. contemplated by Section 28(4) is by the same authority and not by any superior authority such as Appellate or Revisional Authority. It is, therefore, clear to us that the Additional Director General of DRI was not "the" proper officer to exercise the power under Section 28(4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside. 16. At this stage, we must also examine whe....
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....s 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) 6. 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....
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....is squarely covered by such decision. The show cause notice in the present case is also issued by the respondent No.2 - Joint Director, DRI, Mumbai, who is not a proper officer within the meaning of Section 28(4) read with Section 2 (34) of the said Act. Xxxxxxxxx 12. In the light of the decisions of the Hon'ble Supreme Court referred to herein above, we have no hesitation in holding that the entire proceedings in the present case initiated by the respondent No. 2 - Joint Director, DRI, Mumbai, by issuing the show cause notice are invalid, without any authority of law and liable to be set aside and ensuing demands are also liable to be set aside." 10. The Madras High Court in Quantum Coal Energy (P) Ltd. vs. The Commissioner, Office of....
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....n that the show cause notice had not been issued by the proper officer. 12. The Punjab and Haryana High Court in M/s. Steelman Industries vs. Union of India and Others [2021 (8) TMI 1236- Punjab and Haryana High Court ] also, in view of the decision of the Supreme Court in Canon India, allowed the Writ Petition and set aside the entire proceedings arising from the show cause notice as the Additional Director General, DRI was not the proper officer. 13. Various Benches of the Tribunal have also set aside the orders for the reason that the show cause notices were not issued by the proper officer, since they were issued by the Department of Revenue and Intelligence. The decisions are: (i) Principal Commissioner, Customs, Acc Import Commiss....