In the case of Canon India Private Limited v. Commissioner of Customs, the SC observed for that re-assessment and recovery of duties that is contemplated by section 28(4( of Custom Act is by the same authority and not by any superior authority such as appellate or revisional authority.
The main issue is whether after clearance if the goods in the basis that they were exempted from levy of basic customs duty, the proceedings initiated by the Directorate of Revenue Intelligence for recovery of duty not paid under Section 28(4) of the Customs Act, 1962 are valid in law?
In this case, on 19/08/14 a show cause notice was issued under section 28(4) of the customs act 1962 alleging that the Customs Authorities had been induced to clear the cameras by wilful mis-statement and suppression of facts about the cameras.
It is necessary that the answer must flow from the power conferred by the statute u/s 28 of the act which empowers the recovery of duty not paid, part paid or erroneously refunded nh reason of collusion or any wilful mis-statement or suppression of facts and confers the power of recovery on the proper office.
Referring to the provisions of the Act, the bench observed:
_*”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. Indeed, it has been conferred by Section 28 and other related provisions. 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. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of he rank of the officer who initially took the decision to assess the goods”*_
The court held that ADG of DRI was not the proper officer to exercise the power u/s 28(4) and the initiation of proceedings is with out any jurisdiction and liable to be set aside.