Point of Law : 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.

JUDGMENT :

K.R. SHRIRAM, J.

1. On 25th June 2014 this appeal was admitted and the following substantial questions of law were framed :

(i) Whether in the facts and circumstances of the case and in law the Tribunal is justified in holding that the catalyst is different from consumable and therefore denial of benefit to the Respondent is not sustainable?

(ii) Whether in the facts and circumstances of the case and in law 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?

(iii) Whether in the facts and circumstances of the case and in law 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, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice.

Ms. Cardozo further submitted that 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.

Ms. Cardozo submitted that by a Notification No.31/97-Cus. (N.T.) dated 7th July 1997, the Central Government has appointed all officers of the Directorate of Revenue Intelligence to be the officers of Customs. The notification, for ease of reference, is scanned and reproduced here-in-below :

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Ms. Cardozo also relied upon a Notification No.17/2002-Customs (N.T.) dated 7th March 2002 to submit that Additional Directors or Joint Directors of Directorate of Revenue Intelligence posted at Headquarters and Zonal or regional units have also been appointed by the Central Government as Additional Commissioners or Joint Commissioners of Customs. The notification, for ease of reference, is scanned and reproduced hereinbelow :

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Ms. Cardozo further submitted that by another Notification No.44/2011-Customs (N.T.) dated 6th July 2011, the Central Board of Excise and Customs has assigned the functions of the proper officer to Additional Director Generals, Additional Directors or Joint Directors, Deputy Directors or Assistant Directors in the Directorate General of Revenue Intelligence for the purposes of Section 17 and Section 28 of the said Act. The notification, for ease of reference, is scanned and reproduced hereinbelow :

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Ms. Cardozo further relied on a Circular No.44/2011-Customs dated 23rd September 2011 issued by the Central Board of Excise and Customs to submit that sub Section 11 in Section 28 of the said Act was brought in as an amendment with effect from 16th September 2011 and accordi