Per Justice K.K. Usha : The issue that has come up for consideration before the Larger Bench is whether Additional Director General of DRI has power to issue notice under Section 28 of the Customs Act, 1962. Reference was necessitated in view of the difference of opinion between different Benches of the Tribunal of coordinate jurisdiction.

2. The challenge in this appeal is against the order passed by Commissioner of Customs, Jaipur dated 12.7.2001. Order related to import made by the appellant company under Bill of Entry dated 7.5.98. The Commissioner rejected the transaction value declared and demanded duty to the extent of Rs. 5,20,729/- from the appellant company 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 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 levied or charged or which has been so short-levied or part 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;

Provided that where any duty has not been levied or has been short-levied or the interest which has not been levied or charged or has been part paid or the duty or interest has been erroneously refunded by reason or collusion or any wilful misstatement of suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words 'one year' and 'six months', the words 'five years' were substituted.

The above would show that notice under Section 28(1) has to be issued by the 'proper officer'. The term 'Proper Officer' has been defined under Section 2(34) of the Customs Act as follows:-

"'proper officer', in or in relation to any functions to be performed under the Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs."

It is the case of the appellant that for an officer to exercise jurisdiction under Section 28(1) as 'proper officer' he has to be specifically designated as a 'proper officer' to exercise the functions under Section 28(1). Additional Director, DRI has not been notified as a 'proper officer' to exercise jurisdiction under Section 28(1) and therefore the show cause notice under section 28(1) is bad in law for lack of jurisdiction.

4. The learned DR would submit that under Notification dated 26.4.90 Additional Director General of DRI (Hqrs.), New Delhi has been appointed as Collector of Customs having jurisdiction over whole of India. That being so he will be a 'proper officer' as defined under Section 2(34). No separate or specific notification is, therefore, required. The above notification has been issued by the Government of India in exercise of its power under sub-section (1) of Section 4 of the Customs Act. Section 4 reads as follows:-

"4. Appointment of officer of customs- (1) The Board may appoint such persons as it thinks fit to be officers of Customs.

(2) Witho