A/ An/ V. The: Mystery of Proper Officer Under Customs Act Resolved By CS Shubham Budhiraja


ABC Limited imported some products and claimed exemption from custom duty as per N/N but 2 years later, Department of Revenue Intelligence served show cause Notice under Section 28(2) of Customs act, 1962 demanding the exemption so claimed on ground that it was erroneously calculated because there were misrepresentation of facts. The Show cause Notice challenged before SC on ground that Department of Revenue Intelligence is not proper officer under Section 28(2) and hence not competent to demand the dues, if any and thus liable to quashed. The Supreme Court accepted this contention and held that show cause Notice issued by DRI is bad because DRI was not competent and it was for proper officer u/s 28(4)

Consolidated Coffee Ltd. and Another vs. Coffee Board, Bangalore  (1980) 3 SCC 358

Secondly, and more importantly, the user of the definite article ‘the’ before the word ‘agreement’ is, in our view, very significant. Parliament has not said ‘an agreement’ or ‘any agreement’ for or in relation to such export and in the context the expression ‘the agreement’ would refer to that agreement which is implicit in the sale occasioning the export.

Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd. (2001) 3 SCC 609

...’The’ is the word used before nouns, with a specifying or particularizing effect as opposed to the indefinite or generalizing force of ‘a’ or ‘an’. It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. ‘The’ is always mentioned to denote a particular thing or a person.

There are only two articles ‘a (or an)’ and ‘the’. `A (or an)’ is known as the Indefinite Article because it does not specifically refer to a particular person or thing. On the other hand, ‘the’ is called the Definite Article because it points out and refers to a particular person or thing.

THE PROPER OFFICER

There is no doubt that, if Parliament intended that any proper officer could have exercised power under Section 28 (4), it could have used the word ‘any’.

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. In this case, anyone authorised from the Appraisal Group. Assessment is a term which includes determination of the dutiability of any goods and the amount of duty payable with reference to, inter alia, exemption or concession of customs duty vide Section 2 (2) (c) of the Customs Act, 1962

Where the statute confers the same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cannot exercise their powers in the same case Where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute.

As in this case, when the statute directs that “the proper officer” can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone.

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