2017 (6) TMI 566 - AT - Customs

Jurisdiction of Directorate of Revenue Intelligence (DRI) - power to issue SCN - Held that - 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 Customs Acts. Hence, from 06.07.2011 ADG-DRI has been empowered to issue demand notice under Section 28 - Later on, i.e. for the period subsequent to the amendment, the matter i.e. the DRI officers having the proper jurisdiction to issue the SCN or not had come up before the Hon ble Delhi High Court in the case of Mangali Impex vs. Union of India 2016 (5) TMI 225 - DELHI HIGH COURT , and the High Court inter alia, held that even the new inserted section 28(11) does not empower either the officers of DRI or the DGCEI to issue the SCN for the period prior to 8.4.11. Matter remanded 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 Mangli Impex and then on merits of the case but by providing an opportunity to the assessee of being heard - appeal allowed by way of remand.

Summary

Issues:
1. Jurisdiction of Directorate of Revenue Intelligence (DRI) officers to issue show cause notices under the Customs Act.
2. Validity of show cause notice issued by DRI.
3. Interpretation of Section 28 of the Customs Act, 1962.
4. Conflict between High Court judgments regarding the authority of DRI officers to issue show cause notices.
5. Impact of Supreme Court stay order on conflicting High Court decisions.
6. Application of recent High Court judgment in similar cases involving show cause notices by DRI.

Analysis:
1. The primary issue in this case revolves around the jurisdiction of DRI officers to issue show cause notices under the Customs Act. The appellant contended that DRI officers were not proper officers as per Section 2(34) of the Customs Act, citing a Supreme Court decision. The subsequent amendment to Section 28 of the Customs Act and a notification by CBEC appointed the Additional Director General, DRI as a "proper officer" from a certain date. However, conflicting High Court judgments and a Supreme Court stay order on one of the judgments have added complexity to the issue.

2. The appellant relied on the Delhi High Court judgment in Mangli Impex vs. Union of India, which held that DRI officers lacked the authority to issue show cause notices before a specific date. On the contrary, the Bombay High Court and the High Court of Telangana and Andhra Pradesh took a different stance. The matter eventually reached the Supreme Court, which granted a stay on the Delhi High Court judgment, leaving the issue pending before the apex court.

3. Considering the conflicting decisions and the recent judgment in BSNL vs. Union of India by the Delhi High Court, the Tribunal decided to set aside the impugned order and remand the case to the original adjudicating authority. The remand was to allow a decision on jurisdiction post the Supreme Court's ruling on Mangli Impex and subsequent consideration of the case on its merits, with the appellant being granted a hearing opportunity. The status quo was to be maintained until a final decision was reached.

4. Ultimately, the Tribunal allowed the appeals by the assessee by way of remand, emphasizing the importance of awaiting the Supreme Court's decision on the jurisdiction issue. The judgment highlighted the significance of legal clarity on the authority of DRI officers in issuing show cause notices under the Customs Act, aiming to resolve the conflicting interpretations by different High Courts through a comprehensive and fair process.