M/S CANON INDIA PRIVATE LIMITED versus COMMISSIONER OF CUSTOMS

Citation: [2021] 3 S.C.R. 776 · Decided: 09-03-2021 · Supreme Court of India · Bench: S.A. BOBDE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 3 S.C.R.
   [2021] 3 S.C.R. 776
776
M/S CANON INDIA PRIVATE LIMITED
v.
COMMISSIONER OF CUSTOMS
(Civil Appeal No.1827 of 2018)
MARCH 09, 2021
[S.A. BOBDE, CJI, A. S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Customs Act, 1962: s.28(4) – Consignment of cameras – Bill
of Entry submitted to Customs Authorities along with covering letter
and literature containing specifications of the cameras – After
verification of the Bill of Entry by the Inspector and the
Superintendent, the Deputy Commissioner of Customs checked the
goods and took a decision to clear the goods on 24.3.2012, as
being exempt from duty in terms of the Notification No.15/2012
(issued on 17.3.2012) – On 19.8.2014, show cause notice issued
under s.28(4) by Additional Director General, Directorate of
Revenue Intelligence alleging that the Customs Authorities had been
induced to clear the cameras by wilful mis-statement and suppression
of facts about the cameras – Whether the Directorate of Revenue
Intelligence had authority in law to issue a show cause notice under
s.28(4) of the Act for recovery of duties allegedly not levied or paid
when the goods have been cleared for import by a Deputy
Commissioner of Customs who decided that the goods were exempted
– Held: s.28(4) empowers the recovery of duty not paid, part paid
or erroneously refunded by reason of collusion or any wilful mis-
statement or suppression of facts and confers the power of recovery
on “the proper officer” – The obvious intention is to confer the
power to recover such duties not on any proper officer but only on
“the proper officer” – There is no doubt that, if Parliament intended
that any proper officer could have exercised power under s.28(4),
it could have used the word ‘any’ – Parliament has employed the
article “the” not accidentally but with the intention to designate the
proper officer who had assessed the goods at the time of clearance
– The proper officer need not be the very officer who cleared the
goods but may be his successor in office or any other officer
authorised to exercise the powers within the same office – The power
has been so conferred specifically on “the proper officer” which
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must necessarily mean the proper officer who, in the first instance,
assessed and cleared the goods i.e. the Deputy Commissioner
Appraisal Group and not the Director General of the DRI.
Customs Act, 1962: s.28(4) – Power to review – The nature of
the power to recover the duty, not paid or short paid after the goods
have been assessed and cleared for import, is broadly a power to
review the earlier decision of assessment – Such a power is not
inherent in any authority – The power has been so conferred
specifically on “the proper officer” which must necessarily mean
the proper officer who, in the first instance, assessed and cleared
the goods – It is completely impermissible to allow an officer, who
has not passed the original order of assessment, to re-open the
assessment on the grounds that the duty was not paid/not levied, by
the original officer who had decided to clear the goods and who
was competent and authorised to make the assessment – The nature
of the power conferred by s.28(4) to recover duties which have
escaped assessment is in the nature of an administrative review of
an act – The section must, therefore, be construed as conferring the
power of such review on the same officer or his successor or any
other officer who has been assigned the function of assessment –
In other words, an officer who did the assessment, could only
undertake re-assessment – It is, therefore, clear that the Additional
Director General of DRI was not “the” proper officer to exercise
the power under s.28(4) and the initiation of the recovery
proceedings in this case is without any jurisdiction and liable to be
set aside – Tax/Taxation.
Customs Act, 1962: s.6 – Import of cameras – Deputy
Commissioner of Customs checked the goods and took a decision
to clear the goods as being exempt from duty – Show cause notice
issued under s.28(4) by Additional Director General, Directorate
of Revenue Intelligence alleging that the Customs Authorities had
been induced to clear the cameras by wilful mis-statement and
suppression of facts about the cameras – Whether the Additional
Director General of the DRI was even a proper officer – Held: The
Additional Director General can be considered to be a proper officer
only if it is shown that he was a Customs officer un

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