2018 (7) TMI 80

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....r seeking stay of operation of aforesaid Tribunal's final order during pendency of the ROM application. 2 On behalf of the applicant, Ld. Counsel Shri Kishor Kumar Acharya appeared and argued the matter. He submitted that in the course of hearing of Appeal No.C/86/2006 pertaining to the impugned final order of the Tribunal, the applicant had filed written submissions in which the issue of jurisdiction was also raised on behalf of the appellants. He contended that the SCN has been issued by Commissioner (Customs), SIIB and therefore in the light of the decision of the Hon'ble Supreme Court in the case of CC Vs Sayed Ali - 2011 (265) ELT 17 (SC) it has been held that Commissioner Customs, SIIB is not a 'proper officer' in ter....

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.... behalf of the respondent, He submitted hat the SCN has been issued by Commissioner of Customs, SIIB under Section 124 of the Customs Act, 1962. In the decision of Sayed Ali as well as Mangali Impex Ltd (supra) Section 24 way not agitated at all. The dispute in these cases revolve around Section 17 and Section 28 as to whether DRI, DGCEI etc. are 'proper officers'. The Commissioner of Customs has always been a proper officer and therefore the SCN issued by the Commissioner of Customs is valid and does not suffer from any infirmity. Further, the Ld. Counsel had not put forward the issue of jurisdiction at all. Therefore, there is no error apparent on the face of record and he pleaded that the ROM application deserves to be dismissed.....

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....e that the case was posted for hearing on several dates prior to 19.05.2017. On 22.03.2017, none appeared for the appellant and the Tribunal directed to issue notice as a last opportunity adjourning the case to 07.04.2017. On 09.02.2017, Revenue prayed time to adjourn the matter since similar batch of cases involving issue of SCN issued by SIIB, DGCEI and DRI are posted to 16.02.2017. Thus, on Revenue raising the issue of jurisdiction, the Bench adjourned the matter on 09.02.2017. The records do not show that the appellant/counsel had at any point of time raised the issue of jurisdiction. This Bench had heard the matter for the first time on 19.05.2017. In the circumstances, we are not able to give any credence to the affidavit filed by the....

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....by insertion of sub-section (11) in Section 28 by the Customs (Amendment and Validation) Act, 2011 w.e.f.16.09.2011. It is also a fact that in the subsequent judgment by the Hon'ble High Court of Delhi in the case of Mangali Impex Vs UOI -2016 (335) ELT 605 (Del.), the Hon'ble Court, relying on the ratio of Sayed Ali judgement has inter alia held in para-82, that "the Department cannot seek to rely on Section 28 (11) of the Act to validate the SCN issued by the Assistant Commissioner of Customs SIIB to the Petitioner on 31st October 2003". The Court also held that Section 28(11) cannot validate SCNs or proceedings pursuant thereto in relation to non-levy, short levy or erroneous refund for a period prior to 8th April 2011, if such S....