2004 (6) TMI 58

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....under Section 28 of the Customs Act in addition to the duty already paid. Penalty under Section 112(a) and interest under Section 28AB of the Customs Act, 1962. The above proceedings before the Commissioner were initiated pursuant to a show cause notice dated 29-12-2000 issued by the Additional Director Generation of DRI. 3. The contention of the appellant which is relevant for the issue before us is that the Additional Director General of DRI has no jurisdiction to issue a notice under Section 28(1) of the Customs Act, 1962. Relevant portion of Section 28 reads as follows :- 28.Notice for payment of duties, interest etc. (1) When any duty has not been levied or has been short-levied or (1) erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may, - (a) in the case of any import made by any individual for his personal use or by Government, or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been l....

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....er of Customs or a Joint or Assistant or Deputy Commissioner of Customs to appoint officers of Customs below the rank of Assistant Commissioner." Therefore, according to the Revenue show cause notice in this case has been issued by an officer who has jurisdiction to issue the notice under Section 28(1). 5. Both sides relied on different decisions in support of their contentions. We will now refer to those decisions. The appellant relies on the following decisions of the Tribunal :- (1) Commissioner of Customs, Bombay v. Poona Roller - 1997 (89) E.L.T. 604 (Tribunal) (2) Bakeman's Home Products Pvt. Ltd. v. CC, Bombay - 1997 (95) E.L.T. 278 (Tribunal) (3) Manohar Bros. (Capacitors) v. CC II, Bombay - 1998 (98) E.L.T. 821 (Tribunal) (4) Dhirendran N. Sheth v. CC, Kandla - 2000 (122) E.L.T. 625 (Tribunal) (5) Association for Dev. Youth India Pvt. Ltd. v. CC, Kandla - 2001 (130) E.L.T. 585 (Tribunal) (6) Pushpit Steels Pvt. Ltd. v. CC, Kochi - 2001 (130) E.L.T. 520 (Tribunal) (7) CC, Mumbai v. Ramesh Nebhnani - 2001 (138) E.L.T. 232 (Tribunal -Mumbai) (8) CC, Mumbai v. A. Shankar Rao - 2002 (149) E.L.T....

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....or of Customs and Central Excise, Bombay-III was adjudicated by Collector of Customs, Bombay-II. The show cause notice issued by Collector of Customs, Pune was adjudicated by Collector of Customs, Pune II. It was held that show cause notices issued by Collector of Customs and Central Excise, Bombay-III are without jurisdiction. The Collector of Central Excise, Bombay-III was designated as Collector of Customs under Notification No. 58/92-Cus., dated 31-7-92. He cannot issue a notice in respect of alleged contravention taken outside his jurisdiction. Referring to decision of Karnataka High Court in Devilog Systems India v. CC, Bangalore - 1995 (76) E.L.T. 520 (Kar.) it was held that he was not a proper officer for the purpose of Section 28. The Tribunal also took the view that to be a proper officer under Section 28(1) the specific assigning of particular function has to be made. Only because the Collector of Central Excise, Bombay-III is equated as a Collector of Customs it will not ipso facto make him proper officer under Section 28(1). 7. In Association for Dev. Youth India Pvt. Ltd. show cause notice issued by Assistant Director, DRI was held without jurisdiction relying on C....

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....in these two decisions ratio of C.C.E., Mumbai v. Poona Roller and Bakemen's Home Products (Pvt.) Ltd. Similar view was taken in CC, Mumbai v. Mahesh India and Nath International Corporation. In Orient Arts and Crafts the challenge was against the show cause notice issued by Commissioner of Customs (Prev.). It was held that Commissioner of Customs (Prev.) was not designated as the proper officer for demanding duty under Section 28. Reliance was placed on CCE, Mumbai v. Poona Roller and Bakemen's Home Products (Pvt.) Ltd. The challenge was upheld. It was also held that once assessment had been started by Commissioner of Customs, there is no jurisdiction for Commissioner of Customs (Prev.) to raise demands. 9. Revenue relies on the following decisions in support of its contention : Durga Prasad v. H.R. Gomes - 1983 (13) E.L.T. 1501 (S.C.) Union of India v. Sigma Electronics - 1996 (87) E.L.T. 26 (Cal.) Porcelain Crafts & Components Exim P. Ltd. v. CC - 1998 (102) E.L.T. 11 South India Exports v. Jt. DGFT - 2003 (156) E.L.T. 632 (Mad.) = 2003 (88) ECC 679 (Mad) Devilog Systems India v. CC - 1995 (76) E.L.T. 520 (Kar.) CC....

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....e performed by the Act because as the matter of principle the Collector of Customs who had assigned the powers of a "proper officer" to the subordinate officer must himself be deemed to have the powers of a "proper officer" under Section 110(3) of the Customs Act." 13. In Sigma Electronics and Porcelain Crafts & Components Kolkata High Court took the view that it is open to the Revenue Intelligence to make enquiry into import even when goods are released by the Customs authorities and that the officer of the DRI, Revenue Intelligence has the power to detain the goods. In South India Exports contention raised was that Senior Intelligence Officer of DRI is not empowered to issue notice under Section 108 of the Customs Act. The contention was that Section 110 invests power to issue of notice by a gazetted officer of Customs. Senior Intelligence Officer of DRI not being gazetted officer of Customs has no jurisdiction to issue notice. Revenue submitted that Notification No. 97-Cus. (N.T.), dated 7-7-97 clearly refers to appointment of all officers of DRI as officers of Customs. Such notification has been issued in exercise of the powers conferred under Section 4(1) of the Customs Act....

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....tified in Notification No. 19/90-Cus. (N.T.). It is not the appellant's case that Kandla is not covered under the said appointment order nor it is their case that the Commissioner of Customs has no jurisdiction to issue the show cause notices. Therefore, the objection relating to lack of jurisdiction is devoid of merits and is, therefore, rejected." 15. The Revenue has relied on a decision of Calcutta High Court in ITC Ltd. v. Union of India [1991 (53) E.L.T. 234 (Cal.)] where a question arose as to whether certain officers of the Directorate of Anti-Evasion (Central Excise) given the powers of officers of Central Excise can exercise such power throughout the territory of India. It was noted that the Director of Anti-Evasion (Central Excise) invested with all powers of a Collector under the Notification. A Central Excise Officer under Section 2(b) of the Central Excise Act means any officer of the Central Excise Department or any person invested by the Central Board of Excise & Customs with any of the powers of a Central Excise Officer under the Central Excise Act. Therefore, the powers of the Collector of Central Excise under the Central Excise Act may be exercised by the D....