Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Mahesh India on 8 February, 2002
Equivalent citations: 2003(151)ELT605(TRI-MUMBAI)
ORDER G.N. Srinivasan, Member (J)
1. In these cases the department have filed appeals against the order of the Commissioner of Customs, Mumbai dropping the show cause notices. The facts of the case are that the respondents have imported "Expancel 642 MU (Blowing Agent). The charge against the appellant i.e. HMG Industries was that they have misdeclared the classification of the goods thereby evading payment of appropriate amount of the Customs duty. For the purpose of disposal of these appeals, we are referring to the case filed by HMG Industries only for the purpose of convenience. All the cases have been considered by the Commissioner in his order. It has been found by the Commissioner that according to the department, the classification should be under Heading 3809 of the Customs Tariff Act. One of the arguments before the Commissioner was that some of assessments against some of the Noticees were provisional. Therefore there could not have been issued notices under Section 28 of the Customs Act, 1962. As far as the other three cases are concerned, it was argued that the DRI could not have issued the notice, once an appropriate assessment has been made by the proper officer. The Commissioner accepted both the contentions and dropped the proceedings. Hence these appeals by the department.
2. The learned DR contends that officers of the DRI had jurisdiction to issue the impugned show cause notices inasmuch as they have concurrent jurisdiction. He also seeks to rely on the judgment of the Calcutta High Court in two cases in Union of India v. Sigma Electronics [1996 (87) E.L.T. 26]. As far as the cases relating to provisional assessment are concerned, he says that where the matter of certain conspiracy is involved, the same cannot be pleaded as a defence by the assessee.
3. We have considered the submissions made by the learned DR. As far as the provisional assessment is concerned, there cannot be any partial provisional assessment. Once a provisional assessment is made, it stands. Only after it is finalised the fact whether there is a short-levy arise in the case or not will be known in terms of Section 28 of the Customs Act, 1962.
4. As far as the other matters are concerned, namely, where the case is not of provisional assessment, in our view, the show cause notice could not have been issued by DRI because they are not the proper officers in terms of Section 28 of the Customs Act, 1962. In this connection, we would like to cite the judgment of the Tribunal in Manohar Brothers (Capacitors) v. CCE [1998 (98) E.L.T. 821] whereunder Paragraphs 9.3 and 9.4 the Court held as follows:
"9.3 The subject show cause notices basically the notice issued under the provisions of Section 28 of the Customs Act, 1962 and the said section provides for issuance of notice by the "proper officer". The proper officer is defined in Section 2(34) of the Act to mean "the officer of Customs who is assigned those functions by the Board or the Collector of Customs." The definition given, thus makes it clear that only such of the officers of Customs to whom the specific functions (in the instant case, the functions of collection of duty) are assigned, would be the "proper officer" and he alone, to the exclusion of any other officer of Customs, is authorised to issue the notice of demand vide Section 28(1) of the Act. This conclusion is obvious as otherwise, either the words "officer of Customs" would have been used in Section 28(1) of the Act or the definition of the "proper officer" would have been appropriately given. Specific assignment of particular functions is therefore, an essential criteria and only such of the officers who are specifically entrusted the functioning in that regard, could fall within the category of "proper officer".
9.4 Recourse is taken to the Notification No. 58/92-Cus. (N.T.), dated 31- 7-1992 where, amongst others, Collector of Central Excise, Bombay-III has been appointed as Collector of Customs. The same notification mentions that he would be the Collector of Customs within his jurisdiction. The noti fication is issued in exercise of powers vested vide Section 4 of the Customs Act, 1962. By virtue of the notification, the Commissioner of Central Excise, Bombay-Ill has become the Commissioner of Customs and as such the offi cer of Customs, but as already indicated earlier, all officers of Customs are not ipso facto, the proper officer and only those who have been "assigned those functions" fall within that category. Section 5 of the Act provides that all the officers of Customs may exercise powers and discharge duties conferred or imposed on him under the Act and Sub-section (2) thereof, em powers an officer subordinate to him. These provisions also could not be brought into play unless it is either show that the Commissioner issuing no tice was either conferred the duty or was an officer Superior, not cadrewise but as a functionary, to the officer of Customs who had been assigned the function of collection of the Customs duty." . .
5. We are therefore of the view that the argument of the learned DR cannot be accepted. It is true that the DR seeks to cite the judgment of the Calcutta High Court in the case of Union of India v. Sigma Electronics (supra) in our view those judgments do not apply to the facts of the case before us. Therefore, we cannot Follow the same. Hence all the appeals filed by the department are dismissed.