Per: Shri P.K. Desai : Though this group of appeals filed by the Revenue exercising powers under Section 129-D (1) of the Customs Act, involve in consideration of three different orders passed by the Collector of Customs-II at Mumbai, because the main issue for consideration is the same, all the appeals have been argued together and are being disposed of by this common order.

2. First group of appeals (C/375-R/95, C/384 to 386-R/95) are in relation to the order CAO/No. 117/94 CAC, second group of appeals (C/411 to 414-R/95) are against order CAO/No. 116/94 CAC and third group of appeals (C/432 to 435-R/95) are related to order CAO/No. 118/94 CAC. All the orders are dt. 24.6.94. In the first and second group of appeals, the Orders-in-Original are for dropping the proceedings on the ground that the officer issuing the Show Cause Notices, was not the proper officer authorised to issue such Show Cause Notices, whereas in the third group of appeals, the adjudicating authority has, while dropping the part of the proceedings on the same ground as indicated above, have dropped the other part of the demand, by giving his findings on the merits.

3. Confining to the facts necessary for appreciation and determination of the points at issue, three consignments declared to contain "Australian Masoor Whole" were imported and each of the importers were the holders of DEEC Pass Book, and the licences obtained by them, permitted them to import "Raw Whole Masoor (Lentils). On presentation of the documents, the items were ordered clearance duty free. However subsequently, on some specific information received to the effect that what was actually imported were Australian Vetches, by misdeclaring the same as Australian Masoor Whole, and to fulfil export obligations they had exported Masoor Dal of Indian Origin, investigations were conducted by Directorate of Revenue Intelligence, and during the course of such investigation, 64.58 MT of the material imported by one of the importers namely Poona Roller Flower Mills (P) Ltd and 67.5 MT of such material imported by M/s. Parekh Food International, were seized. Some documentary evidences (which if necessary would be dealt with hereafter) were also collected, and completion of the investigation three Show Cause Notices, against three importers namely Poona Roller Floor Mills (P) Ltd., M/s. Sagar Industries, and M/s. Parekh Food International, as also their indenting agents, and the partners/directors of the firm/company each company, were issued. The Notices were issued vide Section 28 and Section 124 of the Customs Act 1962, on 15.5.93, by the Assistant Director DRI, Bombay. Where besides raising the demand for duty on the ground of non-availability of benefit of exemption, it was alleged that the goods so imported were liable to confiscation and importers and their abettors were liable to imposition of penalty. As the period of six months, contemplated under Section 28 of the Act, for the purpose of raising demand, had expired, alleging suppression and mis-declaration, extended period, as contemplated in the proviso to Section 28 (1) of the Act, was invoked.

4. Responding to the Show Cause Notices, the Notices contended that what they had imported were "Australian Masoor Whole" and there was no mis declaration, and major part of the Consignment had already been exported in the form of Masoor Dal, after due processing and as such demand was not justified, nor were the goods liable to confiscation or they were liable to any penalty. Besides that, they also raised a legal contention that the Assistant Director DRI was not competent to issue Show Cause Notices and hence, the proceedings initiated deserved to be dropped.

5. During the adjudication proceedings, by way of preliminary objection, the validity of the notices was challenged and based on the circular dt. 14.5.92, from the Central Board of Excise and Customs, it was pleaded that the Show Cause Notices of the type could be issued only by the Collect