DRI will not be ‘the’ proper officer for issuance of show cause notice under Section 28(1) of the Customs Act: Bombay HC

Issue  

Appeal filed before the Bombay HC to raise the subsequent questions before the law: 

Whether the Tribunal is justified in holding that the catalyst is different from consumable and therefore denial of benefit to the Respondent is not sustainable? 

Whether the Tribunal is justified in holding that the policy will prevail over the customs notification when the Ministry of Finance, Govt. of India has every authority to regulate the customs duty benefit?  

Whether the extended period of limitation is not available despite the fact that the benefit of notification was availed by willfully mis-declaring the goods?” 

Facts  

• Under sub Section 34 of Section 2 of the Customs Act, 1962 (the said Act), the proper officer, in relation to any function to be performed under the said Act, means the officer of customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs. 
• Appellant, submitted that 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. 

Findings  

In the present 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. It is 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 authorized to make the assessment. 

Judgement  

Bombay HC held the Additional Director General of DRI not having, in the first instance, assessed and cleared the goods, he will not be ‘the’ proper officer for issuance of show cause notice under Section 28(1) of the said Act. The appeal has to fail because the show cause notice originally issued itself would be termed non-est. The entire proceeding in the present case initiated by the Additional Director General of DRI by issuing show cause notice is invalid without any authority of law and is liable to be set aside.  

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