2017 (4) TMI 980 - AT - Customs

Jurisdiction to issue SCN - Benefit of N/N. 93/2004-Cus. dt. 10.09.2004 - DEEC licences - violation of Rule 5 (3) of CCR, 2004 - Held that - Discernably, conflicting views have thus been taken by different High Courts on this issue. - Matter is pending before the Supreme Court - it would be imprudent and improper for us to reach a decision in the present appeal by following any of the High Court decisions discussed supra including that of the jurisdictional High Court of Telangana and Andhra Pradesh. It is so enjoined on us by judicial discipline, decorum & propriety. Hence, this Tribunal should not adjudicate on this issue till the law is settled by the Hon ble Apex Court in the said writ petition filed in Mangali Impex case. In this scenario, the liberty is granted to the appellant to come again after the final verdict of the Hon ble Supreme Court in Mangali Impex case within the prescribed time, if advised so. With the aforesaid liberty the appeal is disposed of.

Issues Involved:
1. Jurisdiction of DRI officers to issue Show Cause Notices (SCNs) under Section 28 of the Customs Act, 1962.
2. Validity and retrospective effect of Section 28(11) of the Customs Act, 1962.
3. Conflicting judgments from various High Courts on the jurisdiction of DRI officers.
4. Impact of the Supreme Court's stay on the Delhi High Court's judgment in Mangali Impex Ltd. case.

Issue-wise Detailed Analysis:

1. Jurisdiction of DRI officers to issue Show Cause Notices (SCNs) under Section 28 of the Customs Act, 1962:
The primary contention raised by the appellant was that the DRI officers were not "proper officers" under Section 2(34) of the Customs Act, 1962, at the relevant time, as established by the Supreme Court in the case of Commissioner of Customs Vs. Sayed Ali 2011 (265) ELT 17 (SC). The appellant argued that since the DRI officers lacked jurisdiction, the SCNs issued by them were invalid.

2. Validity and retrospective effect of Section 28(11) of the Customs Act, 1962:
The government amended Section 28 of the Customs Act, 1962, through the Finance Act, 2011, and further inserted sub-section (11) via the Customs (Amendment and Validation) Act, 2011, effective from 08-04-2011. This sub-section retrospectively validated the powers of all customs officers appointed before 06-07-2011 to issue SCNs under Section 28. The Tribunal noted the legislative intent to retrospectively authorize DRI officers as proper officers for issuing SCNs.

3. Conflicting judgments from various High Courts on the jurisdiction of DRI officers:
The Tribunal acknowledged the conflicting views from different High Courts regarding the validity of SCNs issued by DRI officers before 08-04-2011:
- The Bombay High Court in Sunil Gupta Vs. UOI upheld the retrospective validation provided by Section 28(11).
- The Delhi High Court in Mangali Impex Ltd. Vs. UOI held that Section 28(11) did not empower DRI officers to issue SCNs for periods prior to 08-04-2011.
- The High Court of Telangana and Andhra Pradesh in Vuppalamritha Magnetic Components Ltd. Vs. DRI dissented from the Delhi High Court's view and upheld the retrospective validation.

4. Impact of the Supreme Court's stay on the Delhi High Court's judgment in Mangali Impex Ltd. case:
The Tribunal noted that the Supreme Court had granted a stay on the Delhi High Court's judgment in the Mangali Impex case, which questioned the jurisdiction of DRI officers to issue SCNs. The Tribunal emphasized that the matter was sub judice, and finality would be achieved only after the Supreme Court's verdict.

Conclusion:
Given the sub judice status of the Mangali Impex case and the need for judicial discipline, the Tribunal refrained from making a final decision on the appeal. The Tribunal granted liberty to the appellant to approach the Tribunal again after the Supreme Court's final verdict in the Mangali Impex case. The appeal was disposed of with this liberty, and the Miscellaneous Application (EH) was also disposed of accordingly.

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