TaxTMI 
TaxTMI 
2022 (4) TMI 315
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....rises mis-declared the description of the goods and in this manner sought to grossly undervalue them. The Principal Commissioner also found that both Ashok Singhla and Kapil Dev Aggarwal were involved in this process. The Principal Commissioner, therefore, imposed the following penalties upon Ashok Singhla, Kapil Dev Aggarwal and M/s. KY Enterprises: (i) Ashok Singhla, Partner - Rs. 17,50,000/- under section 114AA of the Customs Act and Rs. 17,50,5000/- under section 112(a) of the Customs Act; (ii) Kapil Dev Aggarwal, Partner - Rs. 6,50,000/- under section 114AA of the Customs Act and Rs. 17,50,000/- under section 112(a); (iii) M/s. K.Y. Enterprises - Rs. 1,29,66,747/- under section 114A of the Customs Act and Rs. 40,000/- under section 114AA of the Customs Act. 3. Shri Somesh Arora, learned counsel appearing for the appellants assisted by Shri Abhishek Jaju submitted 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....
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.... 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 to assess the goods. 13. Where the statute confers the 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.....
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.... the Notification dated 04.12.1957 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 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. It is not disputed by the le....
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....ergy (P) Ltd. vs. The Commissioner, Office of the Commissioner of Customs, Custom House, Tuticorin [2021 (3) TMI 1034- Madras High Court] observed as follows: "6. When the matter was taken up for hearing, the learned counsel appearing for the petitioner submitted that the issue is no longer res integra and that the Hon'ble Supreme Court in M/s. Canon India Private Limited V. Commissioner of Customs (2021-VIL-34-SC-CU) had held that the expression "the proper officer" occurring in Section 28 of the Customs Act will only refer to the assessing 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." 13. 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, A....
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....submitted that the notice was also issued under section 124 of the Customs Act for confiscation of the goods under section 111 and imposition of penalty under section 112 of the Customs Act and, therefore, the order to this extent is not bad in law. 19. Learned counsel appearing for the appellant, however placed reliance upon a decision of the Tribunal in Bakeman's Home Products Pvt. Ltd. vs. Collector of Cus., Bombay [1997 (95) E.L.T. 278 (Tribunal)] and contended that the proposal for confiscation of goods and imposition of penalty cannot be segregated from the duty demand and, therefore, if the duty demand fails as the show cause notice was not issued by the proper officer, the proceedings for confiscation and penalty cannot survive. 20. This submission advanced by learned counsel for the appellant deserves acceptance. In Bakeman's Home Products, the Tribunal held that the proposal for confiscation and penalty cannot be segregated from duty demand and, therefore, the proceedings for confiscation and imposition of penalty cannot be sustained. The relevant portion of the decision is reproduced below: "13. Only four of the decisions cited before us are relevant in th....