2021 (12) TMI 859

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....aw the Tribunal is justified in holding that the extended period of limitation is not available despite the fact that the benefit of notification was availed by willfully mis-declaring the goods?" 2. On 4th December 2021, the following order came to be passed : 1. Mr. Dada submits that in view of the judgments contained in the compilation tendered on 29th November 2021 and in particular judgment of the Apex Court in Canon India Private Limited V/s. Commissioner of Customs 1 and order dated 26th October 2021 in Kitchen Essentials and Ors. V/s. The Union of India and Ors. in Writ Petition No.5154 of 2021 nothing would survive in the appeals filed by the Customs department. Ms. Cardozo disagrees with Mr. Dada. 2. Therefore, the appeals be listed for hearing on 9th December 2021. 3. Ms. Cardozo submitted that where any duty has not been levied or not paid or has been short levied or short paid or erroneously refunded, or any interest payable has not been paid or part paid or erroneously refunded, for any reason other than the reasons of collusion or any willful mis-statement or suppression of facts, the proper officer shall, within the time prescribed from the relevant date, serv....

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....7 and Section 28 of the said Act. The said circular, for ease of reference, is scanned and reproduced hereinbelow :   4. Ms. Cardozo submitted that, therefore, the Additional Director General of DRI was a proper officer under Section 28 of the said Act and the notice was issued by a proper officer and there was nothing wrong with the notice and contested the submission of Mr. Dada as recorded in the order dated 4th December 2021 reproduced above. Ms. Cardozo submitted that the Department has filed a Review Petition on 13th May 2021 in the matter of Canon India Private Limited V/s. Commissioner of Customs (2021) SCC Online SC 200 because in the said judgment, except the Notification bearing no.17/2002-Customs (N.T.) dated 7th May 2002, the other notifications reproduced above have not been considered and the Apex Court has also not considered the effect of sub-Section 11 in Section 28 of the said Act and, therefore, the jurisdictional issue raised by Mr. Dada is not correct. 5. Mr. Dada relied upon Canon India Private Limited (Supra) to submit that Additional Director General of DRI, who had issued the notice in this case, was not 'the' proper officer. Mr. Dada submitted that....

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....er of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power conferred by the statute, i.e., under Section 28(4) of the Act. This Section empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any willful mis-statement or suppression of facts and confers the power of recovery on "the proper officer". The obvious intention is to confer the power to recover such duties not on any proper officer but only on "the proper officer". This Court in Consolidated Coffee Ltd. and Another vs. Coffee Board, Bangalore(1980) 3 SCC 358 has held:- "14. ...Secondly, and more importantly, the user of the definite article 'the' before the word 'agreement' is, in our view, very significant. Parliament has not said 'an agreement' or 'any agreement' for or in relation to such export and in the context the expression 'the agreement' would refer to that agreement which is implicit in the sale occasioning the export." 10. In Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd. (2001) 3 SCC 609  has held:- "9. ... 'The' is the word used before nouns, with a specifying or particularising effect as opposed....

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....owers 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. 15. 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 assessment. The nature of the power conferred by Section 28 (4) to recover duties which have escaped assessment is in the nature of an administrative review of an ac....