Top StoriesDRI Not ‘Proper Officer’ Under Section 28(4) Customs Act; Has No Power To Recover Duties : Supreme Court LIVELAW NEWS NETWORK9 March 2021 10:26 PMShare This – xThe Supreme Court has held that the officers of Directorate of Revenue Intelligence(DRI) are not ‘proper officers’ within the meaning of Section 28(4) of the Customs Act, who are empowered to undertake process or recovery of duties.The Court observed that only an officer who did the assessment, can undertake re-assessment under Section 28 (4) of the Customs Act.The issue considered by the…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe Supreme Court has held that the officers of Directorate of Revenue Intelligence(DRI) are not ‘proper officers’ within the meaning of Section 28(4) of the Customs Act, who are empowered to undertake process or recovery of duties.The Court observed that only an officer who did the assessment, can undertake re-assessment under Section 28 (4) of the Customs Act.The issue considered by the Court in this case was whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 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 are exempted. In this case, a show cause notice was issued under Section 28 (4) to Canon India Private Limited alleging that the Customs Authorities had been induced to clear the cameras by wilful mis-statement and suppression of facts about the cameras.Section 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 bench comprising CJI SA Bobde, AS Bopanna and V. Ramasubramanian observed that 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, the bench observed. 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 the rank of the officer who initially took the decision to assess the goods…We find it 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 Section 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 [which is involved in Section 28 (4)].The court therefore held that the Additional Director General of DRI was not “the” proper officer to exercise the power under Section 28(4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside. The court also considered the matter on merits and allowed the appeal.Case: Canon India Private Limited Vs. Commissioner Of Customs [CA 1827 OF 2018]Coram: CJI SA Bobde, AS Bopanna and V. RamasubramanianCitation: LL 2021 SC 152 Click here to Read/Download JudgmentSubscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. All payment options available.loading….Next Story
It recommended that the government amend private sector pension investment guidelines to “distinguish more clearly between financial and non-financial factors”, adding that the current mention of ESG matters should therefore be closely examined.Additionally, it said the government should require that a scheme’s Statement of Investment Principles (SIPs) disclose whether trustees have a stewardship policy.It also said the Pensions Regulator should seek to give the commission’s recommendations weight by promoting them and eventually incorporating them into a forthcoming code of practice.The National Association of Pension Funds said it welcomed the “clarity and certainty” following the commission’s report.The association’s head of investment affairs Paul Lee said: “While many pension fund trustees have always had a good grasp of their fiduciary duties to act in scheme members’ broad interests, it is extremely helpful to have the reassurance that trustees should indeed use their judgement as to what is in the beneficiaries’ interests over the appropriate time horizon.”However, Catherine Howarth of campaign group ShareAction took issue with the decision not to introduce a statutory definition of fiduciary duty.“Codification in a permissive form would retain the flexibility for fiduciary duties to evolve and respect the discretion of trustees while providing the legal clarity the Law Commission acknowledges is much needed,” she said.Simon Howard, chief executive of sustainable investment association UKSIF, said he was happy the guidance acknowledged the room for trustees to consider ESG – although the report stressed that, instead, it should be an issue of examining financial and non-financial factors.Howard also sided with Howarth in lamenting the absence of a statutory underpinning for fiduciary duties.“Whilst we would have liked statutory clarification on this matter, we look forward to working with the Pensions Regulator and the [Financial Conduct Authority] in ensuring they provide rapid, comprehensible and accessible guidance in this area,” he said.The report also has implications for the UK’s forthcoming charge cap for defined contribution (DC) funds.The 0.75% cap, which affects default funds of auto-enrolment compliant DC schemes, should be reviewed in 2017 to assess whether the cap is hampering the ability to commit to long-term investments, according to the report.,WebsitesWe are not responsible for the content of external sitesLink to Law Commission’s full report and guidance for pension trustees Trustees could soon be subject to a new code of conduct governing long-term investment behaviour, and should be required to disclose their approach to stewardship, according to the UK’s Law Commission.The commission’s report, ‘Fiduciary duties of investment intermediaries’ – triggered by the 2012 Kay Review – also rejected calls to introduce a legal definition of fiduciary duties, instead drafting detailed guidance for trustees on whether they can consider factors beyond simple short-term investment returns.In detailed guidance for pension trustees, the commission said it was not helpful for trustees to be obliged to take account of environmental, social and governance (ESG) matters, as these were often “ill-defined” and covered a number of risks.Instead, trustees were urged to consider the risks to a company’s long-term sustainability, and weigh the impact of financial and non-financial matters against each other.
Holders Manchester City eased into the quarter-finals of the Carabao Cup after seeing off a Southampton side who were focused on damage limitation after their humiliating home loss against Leicester.Saints, who had shipped nine goals against the Foxes on Friday night, sat deep for most of a one-sided match at the Etihad Stadium but at least avoided another embarrassing scoreline.Ralph Hasenhuttl’s side held out until the 20th minute, when they were slow to react to a short corner and Nicolas Otamendi rose highest to nod home Bernardo Silva’s cross.Sergio Aguero made it 2-0 before the break with his 11th goal of the season, finding space six yards out to turn in Kyle Walker’s pull-back.The Argentine striker added his side’s third on 57 minutes, getting on the end of a deflected Riyad Mahrez effort to steer a falling ball through Alex McCarthy’s legs.In total, a much-changed City side had 19 shots at goal, while Saints barely made it out of their own half before the break and had to wait until the 65th minute for their first effort, when Claudio Bravo kept out Sofiane Boufal’s curling shot from the edge the box.That brought an ironic chant of ‘we’ve had a shot’ from the travelling fans but they were given a genuine reason to cheer before the end when Jack Stephens headed home a consolation from James Ward-Prowse’s corner.City, who have won this competition in each of the past two seasons, will find out their opponents in the last eight on Thursday. Source: BBC