2017 (9) TMI 1457 - HC - Customs

Restoration of appeal - Jurisdiction - Assessee filed written submissions before the CESATAT raising the issue of jurisdiction of DRI to issue a SCN and adjudicate it. The challenge was to the DRI officer not being a proper officer under the Customs Act 1962 - Held that - the Court is of the view that the CESTAT had to decide the issue on merits - the Court finds that the CESTAT was not justified in rejecting the application filed by the Appellant-Assessee - appeal restored - decided in favor of applicant.

Issues:
1. Rejection of restoration application by CESTAT.
2. Vigilance in pursuing remedies by the Assessee.
3. Jurisdiction of the Additional Director, Directorate of Revenue Intelligence (DRI) to issue a Show Cause Notice (SCN) and adjudicate it.
4. Decision in Mangli Impex Limited v. Union of India.
5. Special Leave Petition filed by the Respondent.
6. Justification of CESTAT's rejection of the restoration application.
7. Payment of costs by the Assessee.

Rejection of Restoration Application by CESTAT:
The High Court considered the rejection of the restoration application by the Customs, Excise, Service Tax Appellate Tribunal (CESTAT) in response to the Assessee's appeal. The CESTAT had dismissed the restoration application seeking recall of an earlier order, noting the Assessee's lack of vigilance in pursuing remedies.

Vigilance in Pursuing Remedies by the Assessee:
Although the CESTAT observed the Assessee's lack of diligence, the Assessee argued that they received notice of the restoration application listing on the same day, making it impossible for them to attend. The High Court acknowledged this argument, finding fault with the CESTAT for not considering this crucial fact in its decision.

Jurisdiction of the Additional Director, Directorate of Revenue Intelligence (DRI):
The Assessee raised the issue of the jurisdiction of the Additional Director of DRI to issue a Show Cause Notice (SCN) and adjudicate it. This challenge was based on the officer not being a 'proper officer' under the Customs Act 1962, a matter previously decided in favor of the Assessee by the High Court in a separate case.

Decision in Mangli Impex Limited v. Union of India:
The High Court referenced its previous judgment in Mangli Impex Limited v. Union of India, where the issue of jurisdiction similar to the present case was decided in favor of the Assessee. This decision was rendered prior to the CESTAT's dismissal of the restoration application, indicating a precedent favoring the Assessee's position.

Special Leave Petition Filed by the Respondent:
The Respondent had filed a Special Leave Petition against the judgment in Mangli Impex Limited v. Union of India, in which leave was granted, and the judgment stayed. Despite this, the High Court emphasized that the CESTAT was obligated to decide the issue on its merits.

Justification of CESTAT's Rejection of the Restoration Application:
The High Court found that the CESTAT was unjustified in rejecting the Assessee's restoration application, setting aside the impugned order and allowing the restoration of the Customs Appeal. The Assessee was directed to be present for further hearing, and all issues were to be decided on their merits by the CESTAT.

Payment of Costs by the Assessee:
Due to the inconvenience caused by the Assessee's lapse, they were directed to pay costs of ?3000 to the Department within four weeks. The appeal and application were disposed of based on these terms.

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