TaxTMI 
TaxTMI 
2017 (4) TMI 980
X X X X Extracts X X X X
X X X X Extracts X X X X
.... duty forgone on the said quantity should not be demanded. Appellant filed application before the Settlement Commission, Mumbai Bench for settlement of the case. The Commission settled the matter vide its final order dt. 22.06.2007. Appellant subsequently took cenvat credit amounting to Rs. 32,68,212/- in September 2007. However, another SCN dt. 07.10.2008 was issued alleging violation of Rule 5 (3) of Cenvat Credit Rules, 2004 and inter alia proposing recovery of alleged irregularly availed cenvat credit of Rs. 32,68,218/-. The proposed demand was confirmed by original authority vide order dt. 09.04.2009 along with interest thereon and imposition of penalty of Rs. 5 lakhs under Rule 15 of Cenvat Credit Rules, 2004. In appeal, Commissioner (Appeals) vide impugned order dt. 28.08.2009 upheld the order of original authority. Aggrieved, appellants are before this forum. 2.0 On 23.02.2017, when the matter came up for hearing, on behalf of the appellant, Ld. Counsel, Shri G. Natarajan submits that present dispute has arisen consequent to the DRI investigation and issuance of SCN by DRI dt. 06.03.2007 which further led to issue of notice by Central Excise authorities on 07.10.2008 for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds as follows : "SECTION 28. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. .... (11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all persons appointed as officers of Customs under sub-section (1) of section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section. Explanation 1. For the purposes of this section, relevant date means, (a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof or re-assessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n says that all persons appointed as officers of Customs under Section 1(4) before 6th July, 2011 shall be deemed to have been and always to be the proper officers for the purpose of this section, then, the Notifications, which are referred by us above at page 369 and 373 of the paper book are specifically saved and validated. They have been given a retrospective effect. These Notifications were holding the field and were not quashed or set aside. In the teeth of such Notifications, the legislature stepped in to clarify the position that if the functions of the Customs officer can be entrusted or assigned by the Central Government or the Board in terms of Section 6 of the Customs Act, 1962, then, all such Notifications, have been validly issued and enforced. They enable the Parliament to clarify that the officers mentioned therein shall be deemed to be the proper officers for the purposes of Section 17 and 28 of the Act. Precisely, that has been done in the instant case. 24. If that has been done, then, no assistance can be derived from the Judgment of the Hon'ble Supreme Court in the case of Sayed Ali (supra). There, for want of jurisdiction or competence in the Collector....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he President of India, some cases were initiated and Section 28 was resorted to by the authorities. The Explanation 2 clarifies that they will proceed in terms of the un-amended provision. The position dealt with by insertion of Section 28(11) is distinct and that is about competence of the officer. The officers namely those from the Directorate of Revenue Intelligence having been entrusted and assigned the functions as noted above, they are deemed to have been possessing the authority, whether in terms of Section 28 un-amended or amended and substituted as above. In these circumstances, for these additional reasons as well, the challenge to this sub-section must fail. 5.7. However, a contrary view was taken by the Hon'ble Delhi High Court in Mangali Impex Ltd. Vs UOI 2016 (335) EL 605 (Del.), inter alia, holding that newly inserted Section 28 (11) does not empower officers of DRI and DGCEI to either proceed to adjudicate SCNs already issued by them for period prior to 08-04-2011 or to issue SCNs for period prior to 08-04-2011. The Delhi High Court placed reliance on Sayed Ali case (supra). The relevant portion of the Delhi High Court s order is reproduced below :- "Con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sented from the Mangali Impex Judgement of Delhi High Court and took a contrary view inter alia as under : "10. At the outset, we are of the considered view that the writ petition is not maintainable. The show cause notice dated 30-7-2009, which is under challenge in the present writ petition, is no longer in force. The show cause notice has already culminated in a order of adjudication and the order of adjudication has also been confirmed by the Tribunal, the High Court and the Supreme Court. The doctrine of merger has come into play and the show cause notice is not available any more for the petitioner to challenge. 11. Heavily reliance is placed by Mr. P. Vikram, learned counsel for the petitioner on two things viz., (1) the judgment of the Delhi High Court in Mangali Impex Ltd., (supra); and (2) the judgment of a Division Bench of the Punjab & Haryana High Court in Rajinder Arora and Others v. Union of India and Others [2016 (339) E.L.T. 370 (P & H)]. In Mangali Impex Ltd., (supra), the Division Bench of the Delhi High Court set aside even the show cause notices, despite the fact that the show cause notices had already culminated in orders of finality. In Raji....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt point of time on the ground that the show cause notice was issued by a person not assigned the role of a proper officer. The petitioner had challenged the show cause notice and the order of adjudication on other grounds, which stand rejected up to Supreme Court. Therefore, the principle of finality to litigation would put a seal on the present attempt on the part of the petitioner to reopen the issue all over again." 5.9. Discernably, conflicting views have thus been taken by different High Courts on this issue. 5.10. However as already discussed supra, on appeal, the Hon'ble Supreme Court has granted stay on the Mangali Impex judgement (supra) vide its order dt.01-08-2016, the account thereof as reported in 2016 (339) ELT A49 (SC), is as follows : "The Supreme Court Bench comprising Hon'ble Mr. Justice Madan B. Lokur and Hon'ble Mr. Justice R.K. Agrawal on 1-8-2016 issued notice in the Petition for Special Leave to Appeal (C) No. 20453 of 2016 filed by Union of India against the Judgment and Order dated 3-5-2016 of Delhi High Court in W.P. (C) No. 441 of 2013 as reported in 2016 (335) E.L.T. 605 (Del.) (Mangali Impex Ltd. v. Union of India). While issuing the not....