Modern Insecticides Limited Vs Commissioner of Customs (CESTAT Chandigarh)
Although Review Petition filed by the Revenue has been pending before the Hon’ble Apex Court in the above said case but there after in the case of Commissioner of Customs Kandla vs. M/s. Agarwal Metals & Alloys (supra) again the Hon’ble Apex Court has follow up the decision of Canon India Pvt. Ltd. (supra) and hold that the Additional Director General (ADG), DRI is not a proper Officer within the meaning of Section 28 (4) read with Section 2 (34) of Customs Act, 1962. Further, the said decision has been followed by the Hon’ble Madras High Court in the case of Quantum Coal Energy Pvt. Ltd. (supra) and the jurisdictional Hon’ble High Court of Punjab & Haryana in the case of Steelman Industries vs. Union of India & Ors. (supra).
In view of the above, following the above said decisions, we hold that Additional Director General, DRI, Ludhiana is not a proper Officer to issue Show Cause Notice under Section 28 (4) read with Section 2 (34) of Customs Act, 1962. Therefore, the impugned proceedings are set aside.
FULL TEXT OF THE CESTAT CHANDIGARH ORDER
This appeal filed by the appellant is against the order passed by Commissioner, Customs, Ludhiana wherein Show Cause Notice has been issued by Additional Director General, DRI, Ludhiana.
2. The learned Counsel for the appellant submits that in this matter Show Cause Notice has been issued by Additional Director General (DRI), Ludhiana who is not a proper Officer to issue Show Cause Notice under Section 28 (4) read with Section 2 (34) of Customs Act, 1962. Therefore, impugned order is to be set aside. In support of his contention, he relied on the decisions as follows:-
1. Canon India P. Ltd. vs. Commissioner of Customs reported in 2021 – TIOL – 123 – SC – CUS – LB.
2. Commissioner of Customs Kandla vs. M/s. Agarwal Metals & Alloys reported in 2021 – TIOL – 233 – SC – CUS – LB.
3. Quantum Coal Energy Pvt. Ltd. vs. Commissioner, Office of the Commissioner of Customs reported in 2021 – TIOL – 711 – HC – MAD – CUS.
4. Steelman Industries vs. Union of India & Ors CWP No.11287 of 2015 decided on 04.08.2021.
5. Godrej Boyee Manufacturing Co. Ltd. vs. Union of India CWP No.19871 of 2020, Order dated 19.04.2021.
3. On the other hand, learned Authorised Representative for the Department submitted that the respondents have filed a Review Petition before the Hon’ble Apex Court in the case of Canon India P. Ltd. (supra). Therefore, matter be kept pending. He further submitted that documents were sought from the Department to argue the matter on merits. Therefore, matter be adjourned.
4. Heard the parties and considered the submissions.
5. We find that the appellant primarily had challenged the jurisdiction of Additional Director General, DRI, Ludhiana have no power to issue Show Cause Notice. Therefore, issue before us to decide as under:-
“Whether Additional Director General, DRI, Ludhiana is having jurisdiction to issue Show Cause Notice under Section 28 (4) read with Section 2 (34) of Customs Act, 1962 or not.”
6. The said issue has been dealt by the Hon’ble Apex Court in the case of Canon India P. Ltd. (supra) wherein the Hon’ble Apex Court held as under:-
18. The next step is to see whether an Additional Director General of the DRI who has been appointed as an officer of Customs, under the notification dated 7-3-2002, has been entrusted with the functions under Section 28 as a proper officer under the Customs Act. In support of the contention that he has been so entrusted with the functions of a proper officer under Section 28 of the Customs Act, Shri Sanjay Jain, Learned Additional Solicitor General relied on a Notification No. 40/2012, dated 2-5-2012 issued by the Central Board of Excise and Customs. The notification confers various functions referred to in Column (3) of the notification under the Customs Act on officers referred to in Column (2). The relevant part of the notification reads as follows :-
“[To be published in the Gazette of India, Extraordinary, Part I,
Section 3, Sub-section (i)]
Government of India
Ministry of Finance
(Department of Revenue)
Notification No. 40/2012-Customs (N.T.)
New Delhi, dated the 2nd May, 2012
S.O. (E). – In exercise of the powers conferred by sub-section (34) of section 2 of the Customs Act, 1962 (52 of 1962), the Central Board of Excise and Customs, hereby assigns the officers and above the rank of officers mentioned in Column (2) of the Table below, the functions as the proper officers in relation to the various sections of the Customs Act, 1962, given in the corresponding entry in Column (3) of the said Table :-
