Per Gowri Shankar:

These three appeals are being disposed of by this order.

2. We first deal with Appeal E/953/93-A. Penalty of Rs. 50,000/- has been imposed on the appellant on the ground that he was concerned with under valuation of consignment of filters for diesel engines. It is the contention of the advocate for the appellant that the appellant had whatsoever to do with M/s. Pareekh & Company which had imported these goods covered by bill of entry 2247 dated 22/5/1989. He says that there is nothing in the order of the Collector or in the show cause notice to show involvement on the part of appellant. On reading these documents we find that this is to be the correct position. Dhirendra Shah, the appellant was a director of M/s. Neptune Auto Spares Pvt. Ltd. He had in his statement accepted that two consignments of filters were imported by that Company, covered by bill of entry 3826 dated 24/9/1987 and 1083 dated 29/2/1988. He has not said a word about goods covered by bill of entry No. 2247 dated 22/5/1989. Neither Biren Shah the other director of Neptune Auto Spares Pvt. Ltd. implicated this appellant in this import. Therefore no basis for imposition of penalty on him.

3. We therefore set aside the penalty imposed on the appellant and allow the appeal.

4. The contention with regard to the other two appeals C/952 and 954/93-A, is that the notices were issued by the Assistant Director in the Directorate of Revenue Intelligence and he is not a proper officer to issue notice under Section 28 (1) of the Act. No duty therefore demandable from the importer and therefore no penalty imposable on the importer. Reliance was placed on the decision of the Tribunal in CC, Bombay Vs. Poona Roller 1996 (16) RLT 201. The importation took place of these goods, and the goods were cleared, in 1988. The notice by the Directorate of Revenue Intelligence was issued in 1992. These facts are narrated in the order of the Collector. The notice therefore would have necessarily to have invoked the extended period. In CC Vs. Poona Roller the Tribunal had held that such a notice was to be issued by the Collector and could not have been issued by Assistant Director, Directorate of Revenue Intelligence. The latter was not declared by the Board as a proper officer for the purpose of Section 28 of the Act. That position would hold true in the case before us. The notice demanding duty was hence invalid. This invalidity would not be affected by the fact that no appeal had been filed by the importer. For the purpose of imposition of penalty on the appellant the notice first would have to be established that the goods are liable to confiscation under clause (m) of Section 111. Penalty therefore could not be imposed on the appellant in these two appeals.

5. Accordingly we allow these two appeals and impugned order set aside. Consequential relief.