Shri Kripa Shankar Srivastava and Vs. the Commissioner of Customs - Court Judgment

Excerpt:
1. after hearing both sides and considering that the imports in this case were effected through bombay sea port and assessment orders were made on the bill of entry filed by officers of bombay custom house and this show cause notice was subsequently been issued by the collector of customs (preventive) and not by the proper officer of bombay bombay custom house demanding duty and proposing further actions under the customs act and the fact that a demand under section 28 of the customs act, would be in the nature of reassessment order of an assessment made earlier we would agree with the appellant's contention that following the ratio of the decision of the hon'ble apex court in the case of uoi v. ramnarain biswanath reported in 1997 (96) (elt) 224 sc that this matter was required to be dealt with by the proper officer who made the assessments under section 17 of the customs act, 1962.2. ld. dr reliance upon the decision of the larger bench especially para 8 thereof, in the case reported at 2004 (176) elt 51, wherein the larger bench had held that adg, dri would be a proper officer under the provisions of section 28 of the customs act, 1962 to issue a demand of duty. finding force in the appellants reliance of the decision in the case of canepo textiles pvt ltd., v. state of haryana (1992 (84) stc 88) that in case where any one of two different officers having jurisdiction starts the assessment proceedings the other concurrent jurisdiction officer shall not be entitled to start the same the moment the officer who started the proceedings later on gets the information that the proceedings had already been started by the concurrent officer and the later officer will have to stay his hands and this decision would rot adduce to a finding that the collector (preventive) should not have proceeded with adjudication of the matter of reassessment of the bills of entry which were earlier assessed and ordered to be cleared under the customs act by an officer of collector of customs, mumbai port. however, keeping in mind the larger bench's decision, we cannot uphold the issue of demand under section 28 of the customs act in this case to be without jurisdiction, as such demand has been issued by a proper officer i.e. collector of customs (prev.) having jurisdiction over the area where the import was effected and bill of entry was filed. keeping also in mind the hon'ble supreme court's decision (supra) and upholding the show cause notice issued in this case, we would set aside the order of the adjudication and passed by the collector of customs (prev.) and direct that the issues be determined after following the principles of natural justice by the jurisdictional commissioner of customs-in-charge of the group which had earlier assessed the bill of entry in question at bombay port. while adjudicating in the denovo proceedings, the collector of customs should hear the appellants on all issues, which are kept open and pass a suitable order dealing with the issues raised before him. in view of our finding, the appeals are allowed in above terms.

Judgment:
1. After hearing both sides and considering that the imports in this case were effected through Bombay Sea Port and assessment orders were made on the Bill of Entry filed by officers of Bombay Custom House and this show cause notice was subsequently been issued by the Collector of Customs (Preventive) and not by the proper officer of Bombay Bombay Custom House demanding duty and proposing further actions under the Customs Act and the fact that a demand under Section 28 of the Customs Act, would be in the nature of reassessment order of an assessment made earlier we would agree with the appellant's contention that following the ratio of the decision of the Hon'ble Apex Court in the case of UOI v. Ramnarain Biswanath reported in 1997 (96) (ELT) 224 SC that this matter was required to be dealt with by the proper officer who made the assessments under Section 17 of the Customs Act, 1962.

2. Ld. DR reliance upon the decision of the Larger Bench especially para 8 thereof, in the case reported at 2004 (176) ELT 51, wherein the Larger Bench had held that ADG, DRI would be a proper officer under the provisions of Section 28 of the Customs Act, 1962 to issue a demand of duty. Finding force in the appellants reliance of the decision in the case of Canepo Textiles Pvt Ltd., v. State of Haryana (1992 (84) STC 88) that in case where any one of two different officers having jurisdiction starts the assessment proceedings the other concurrent jurisdiction officer shall not be entitled to start the same the moment the officer who started the proceedings later on gets the information that the proceedings had already been started by the concurrent officer and the later officer will have to stay his hands and this decision would rot adduce to a finding that the Collector (Preventive) should not have proceeded with adjudication of the matter of reassessment of the Bills of Entry which were earlier assessed and ordered to be cleared under the Customs Act by an officer of Collector of Customs, Mumbai Port. However, keeping in mind the Larger Bench's decision, we cannot uphold the issue of demand under Section 28 of the Customs Act in this case to be without jurisdiction, as such demand has been issued by a proper officer i.e. Collector of Customs (Prev.) having jurisdiction over the area where the import was effected and Bill of Entry was filed. Keeping also in mind the Hon'ble Supreme Court's decision (supra) and upholding the show cause notice issued in this case, we would set aside the order of the adjudication and passed by the Collector of Customs (Prev.) and direct that the issues be determined after following the principles of natural justice by the jurisdictional Commissioner of Customs-in-charge of the group which had earlier assessed the Bill of Entry in question at Bombay Port. While adjudicating in the denovo proceedings, the Collector of Customs should hear the appellants on all issues, which are kept open and pass a suitable order dealing with the issues raised before him. In view of our finding, the appeals are allowed in above terms.