NDLI: M/s Canon India Private Limited Vs. Commissioner of Customs

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	1962: s.28(4) Customs Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 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 under the Customs Act – It is obvious that the re-assessment and recovery of duties i.e. contemplated by s.28(4) is by the same authority and not by any superior authority such as Appellate or Revisional Authority – It is, therefore, clear that the Additional Director General of DRI was not “the” proper officer to exercise the power under s.28(4) – If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under s.6 of the Act – The entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set- aside. Customs Act, 1962: s.28(4) – Limitation – Suppression of facts – Invocation of extended period of limitation – Held: On facts, importer had asked for a first check and had shown the cameras along with Bill of Entry and literature detailing specifications of models – The custom authorities could have operated the cameras to see the length of time of the single sequence and whether recording of the single sequence exhausted the total memory of the camera (including extended memory) and whether the cameras were eligible for exemption – In such circumstances, it cannot be said that there was any wilful mis-statement of facts – It must, therefore, follow that the extended period of limitation of five years was not available to any authority to re-open under s.28(4). Interpretation of statutes: It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone – Customs Act, 1962 – s.28(4). Interpretation of statutes:
Judge	Honble Mr. Justice Sharad Arvind Bobde
Neutral Citation	2021 INSC 169
Petitioner	M/s Canon India Private Limited
Respondent	Commissioner Of Customs
SCR	[2021] 3 S.C.R. 776
Judgement Date	2021-03-09
Case Number	1827

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