COMMISSIONER OF CUSTOMS. versus SAYED ALI & ANR.

Citation: [2011] 2 S.C.R. 1045 · Decided: 18-02-2011 · Supreme Court of India · Bench: D.K. JAIN · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2011] 2 S.C.R. 1045 
COMMISSIONER OF CUSTOMS. 
v. 
SAYED ALI & ANR. 
(CIVIL APPEAL NOS. 4294-4295 of 2002} 
FEBRUARY 18, 2011 
[D.K. JAIN, H.L. OATIU, JJ.] 
CUSTOMS ACT, 1962: 
A 
B 
Section 2(34) and 28 read with s. 111 (d) - "Proper c 
officer''-Notice for payment of duty, interest etc. - Issued by 
Collector of Customs (Preventive) - Propriety of- HELD: Only · 
such a Customs Officer who has been assigned the specific 
functions of assessment and re-assessment of duty in 
jurisdictional area, where the import concerned has been 0 
affected, by either the Board or the Commissioner of Customs 
in terms of s.2(34), is competent to issue notice uls 28 -
Specific entrustment of function by either the Board or the 
Commissioner of Customs is, therefore, the governing test to 
determine whether an "officer of customs» is the "proper E 
officer»- In the instant cases, the import manifest and the bill 
of entry having been filed before the Collectorate of Customs 
(Imports) Mumbai, the same having been assessed and 
clearance for home consumption having been allowed by the 
proper officer on importers executing bond, undertaking the 
obligation of export, the Collector of Customs (Preventive), not 
F 
being a "proper officer» within the meaning of s. 2(34) of the 
1 Act, was not competent to issue show cause notice for re-
assessment u/s. 28 of the Act- Notifications No. 250- Cus and 
251-Cus dated 27.8.1983. 
Civil Appeal Nos. 4294-4295 of 2001 arose out of the 
notice issued to assessee-respondent No.2, a 
partnership firm engaged in the business of carpet 
1045 
G 
H 
1046 
SUPREME COURT REPORTS 
[2011] 2 S.C.R. 
A manufacture, by Collector of Customs (Preventive) on 
16.4.1994 asking the assessee to show cause as to why 
goods under seizure be not confiscated and customs 
duty be not levied in terms of s. 28 (1) of the Customs Act, 
1962 by invoking extended period of limitation. When the 
B matter reached the Customs Excise and Gold (Control) 
Appellate Tribunal, it held that the Commissioner of 
Customs (Preventive) did not have jurisdiction to issue 
the show cause notice. When on similar facts appeals 
giving rise to CA Nos. 4603-4604 of 2005, came before 
c CESTAT, it upheld the issuance of show cause notice by 
the Collector of Customs(Preventive), u/s 20 of the Act. 
Allowing CA Nos. 4603-4604 of 2005 and dismissing 
CA Nos. 42304-4295 of 2002, the Court 
D 
HELD: f.1 It is evident that the notice u/s 28 of the 
Customs Act, 1962 has to be issued by the "proper 
officer". Section 2(34) which defines the term "proper 
officer" makes it clear that only such officers of customs 
who have been assigned specific functions would be 
E "proper officers" in terms of s.2(34). Specific entrustment 
of function by either the Board or the Commissioner of 
Customs is, therefore, the governing test to determine 
whether an "officer of customs" is the "proper officer". 
[para 12-13] [1057-0-G] 
F 
1.2 From a conjoint reading of s.2(34) and s.28 of the 
Act, it is manifest that only such a customs officer who 
has been assigned the specific functions of assessment 
and re-assessment of duty in the jurisdictional area 
where the import concerned has been affected, by either 
G the Board or the Commissioner of Customs, in terms of 
s. 2(34) of the Act is competent to issue notice u/s 28 of 
the Act. Any other reading of s. 28 would render the 
provisions of s. 2(34) of the Act otiose in as much as the 
test contemplated u/s 2(34) of the Act is that of specific 
H 
COMMISSIONER OF CUSTOMS. v. SAYED ALI & 1047 
ANR. 
conferment of such functions. [para 14) [1057-H; 
A 
1058-A-B] 
1.3 It cannot be said that once territorial jurisdiction 
is conferred, the Collector of Customs (Preventive) 
becomes a "proper officer" in terms of s.28 of the Act, as 
8 
it would lead to a situation of utter chaos and confusion, 
in as much as all officers of customs, in a particular area 
be it under the Collectorate of Customs (Imports) or the 
Preventive 
Collectorate, 
would 
be 
"proper 
officers". Therefore, it is only the officers of customs, C 
who are assigned the functions of assessment, which of 
course, would include re-assessment, working under the 
jurisdictional Collectorate within whose jurisdiction the 
bills of entry or baggage declarations had been filed and 
the consignments had been cleared for home 
consumption, will have the jurisdiction to issue notice u/ D 
s. 28 of the Act. [para 14) [1058-8-E] 
1.4 In the instant cases, the 

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