2022 (7) TMI 210

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....issues involved in all the Civil Miscellaneous Appeals are one and the same, they are taken up together for hearing and are disposed of by this common judgment. 2.All these Civil Miscellaneous Appeals are filed by the appellant / Revenue against a common order dated 15.11.2017 passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in Final Order Nos.42960 to 42995 of 2017, suggesting the following substantial questions of law:- "(i) When jurisdictional High Court Judgments are available upholding the competency of the DRI to issue show cause notice under Section 28 of the Customs Act 1962, whether the CESTAT is correct in remanding the appeal. (ii) Whether Tribunal is empowered to remand the case without deciding the issues raised therein on the ground that jurisdiction of the officer to issue show cause notice is under dispute." 3.The respondent(s) herein approached the CESTAT, by filing appeals as against the orders dated 20.05.2013 passed by the Commissioner of Customs (Seaport-Import), Chennai, questioning the jurisdiction of the officials of the DRI, who have not been designated as proper officers under the Customs Act, 1962 during the relevant point of ....

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.... that the preliminary issue which emerges in the present appeals is regarding the jurisdiction of the DRI officers to issue notice under the Customs Act. The assessee-Respondent had taken a stand that in terms of the Hon'ble Apex Court decision in the case of Commissioner of Customs vs. Sayed Ali, 2011 (265) 17 (SC), the DRI officers were not proper officers in terms of Section 2 (34) of the Customs Act, 1962. It is also seen that after the declaration of law by the Honourable Supreme Court (Supra) the provisions of Section 28 of the Customs Act, 1962 were amended with effect from 08.04.2011 vide Finance Act, 2011. It is also noticed that in order to overcome the situation created by the judgment of Hon'ble Supreme Court in the case of Sayed Ali (surpa), notification No.4/2011-Cus (NT), dated July 6, 2011 was issued by the CBEC, assigning the functions of the proper officer to various officers (including Additional Director General, DRI) mentioned in the notification, for the purposes of Section 28 of the Act. Thus, w.e.f. July 6, 2011, the Additional Director General, DRI was prospectively appointed as 'proper officer' for the purpose of Section 28 of the Custo....

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....mpex Limited." By following the ratio laid down by the Hon'ble High Court of Delhi in the case of BSNL (supra) as well as by considering totality of facts and circumstances, we set aside the impugned order and remand the matter to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon'ble Supreme Court decision in the case of Mangali Impex and then on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision, the Status quo will be maintained. In the result, both the appeals are allowed by way of remand. 7. In view of the above discussion and analysis, all the appeals are allowed by way of remand and for decision by the original authority, in terms of the observation of the Tribunal. Consequently, the stay applications also get disposed of." Aggrieved over the same, the Revenue is before this court with these Civil Miscellaneous Appeals. 5.Heard both sides and perused the materials placed before this court. 6.Earlier, the issues involved herein have been considered and decided by a Co-ordinate Bench of this Court, in the case of The Commissioner of Customs v. M/s. ....

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....e Adjudicating Authority. 6. In the case of the Commissioner of Customs, Tuticorin v. The Customs, Excise & Service Tax Appellate Tribunal and others [CMA.(MD)Nos.375 to 379 of 2018] [2019 (31) G.S.T.L.33 (Mad.)], a Division Bench of this Court, to which one of us (T.S.Sivagnanam, J.) was a party, had an occasion to test the correctness of an identical order passed by the Tribunal and by a common Judgment, dated 4-10-2019, set aside the order of the Tribunal and restored the appeals to the file of the Tribunal to be kept pending and await the decision of the Hon'ble Supreme Court. It was also made clear that the appellant - Department shall not initiate any coercive action against the respondents/assessees. The operative portion of the said Judgment reads as follows: "3. In these appeals, the Revenue has raised the following substantial questions of law, (i) as to whether the Tribunal was right in allowing the appeals on the ground that the jurisdiction issue has to be decided by the Hon'ble Supreme Court in the appeal filed against the decision of the High Court of Delhi, in the case of Mangali Impex vs. Union of India reported in 2016(335)E.L.T.605(Del.); (ii) The....