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2017 (5) TMI 1231 - AT - CustomsPower of proper office to demand notice - Smuggling - raw silk of foreign origin was being smuggled into India from Nepal - Held that - w.e.f. 06/07/2011, the Additional Director General, DRI was prospectively appointed as proper officer for the purpose of Section 28 of the Customs Act. Hence from 06/07/2011, ADG-DRI has been empowered to issue demand notice u/s 28 - sub-section 11 was inserted under Section 28 of the Customs (Amendment and Validation) Act, 2011 dt. 16/09/2011, assigning the functions of proper officers to various DRI officers with retrospective effect. A new inserted Section 28(11) does not empower either the officers of DRI or the DGCEI to adjudicate the SCN issued by them for the period prior to 08/04/2011. Matters remanded to the original adjudicating authority to first decide the issue of jurisdiction - appeal allowed by way of remand.
Issues:
Appeal against Order-in-Original No.21/2006-Cus dt. 01/05/2006 passed by the Commissioner of Customs, Bangalore. Analysis: 1. Jurisdiction of DRI Officers to Issue Show-Cause Notice: The case involved an appeal against the Order-in-Original passed by the Commissioner of Customs, Bangalore. The investigations were carried out by the DRI, and a show-cause notice was issued by them. The main issue that emerged was regarding the jurisdiction of DRI officers to issue show-cause notices under the Customs Act. The Supreme Court in CC Vs. Sayed Ali held that DRI officers were not proper officers as per Section 2(34) of the Customs Act, 1962. However, subsequent amendments to Section 28 of the Customs Act and Notification No.44/2011-Cus (NT) empowered the Additional Director General, DRI as the proper officer for the purpose of Section 28 from 06/07/2011. The insertion of sub-section 11 under Section 28 with retrospective effect further assigned proper officer functions to various DRI officers. The issue of jurisdiction was also addressed by various High Courts, with conflicting views leading the matter to the Supreme Court. 2. Contrary Views of High Courts and Supreme Court Intervention: The issue of DRI officers' jurisdiction was a subject of conflicting decisions by different High Courts. The Hon'ble Delhi High Court in Mangali Impex Vs. UOI held that officers of DRI could not adjudicate show-cause notices issued before 08/04/2011. This decision was in favor of the assessee. However, the Supreme Court stayed this decision. On the other hand, the Hon'ble Mumbai High Court and the High Court of Telangana and Andhra Pradesh took a contrary view. The matter was eventually brought before the Supreme Court due to the conflicting decisions. In a previous case, the Supreme Court had remanded a similar matter to the Tribunal for re-examination in light of the Sayed Ali case. Hence, in this case, the Tribunal deemed it appropriate to set aside the impugned orders and remand the matters to the original adjudicating authority to decide the issue of jurisdiction post the Supreme Court decision in Mangali Impex and then proceed with the merits of the case. 3. Final Decision and Outcome: In conclusion, the appeals were allowed by way of remand. The Tribunal ordered the matters to be sent back to the original adjudicating authority to first determine the jurisdiction issue following the Supreme Court's decision in Mangali Impex and then proceed with the case on its merits. This decision was based on the conflicting views of various High Courts and the pending Supreme Court intervention in similar matters. This detailed analysis of the judgment highlights the key legal issues, the evolution of the jurisdiction matter concerning DRI officers, conflicting decisions by different High Courts, and the Tribunal's decision to remand the case for further consideration based on the Supreme Court's impending decision.
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