2017 (9) TMI 329 - AT - Customs

Jurisdiction - power of DRI to issue SCN - whether DRI is competent to issue show-cause notice? - 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 Act. Hence, from 06.07.2011 ADG-DRI has been empowered to issue demand notice under Section 28. Subsequently, sub-section 11 was inserted under section 28 of the Customs (Amendment and Validation) Act, 2011 dated 16.9.2011, assigning the functions of proper officers to various DRI officers with retrospective effect - 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 came 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 or adjudicate for the period prior to 8.4.2011. Recently, the Hon ble High Court of Delhi in the case of BSNL Vs. UOI 2017 (6) TMI 688 - DELHI HIGH COURT has dealt with the identical issue where the notice was also issued by DRI. The Hon ble High Court of Delhi has considered the judgment in the case of Mangli Impex Vs. UOI which is stayed by the Hon ble Supreme Court. Finally the Hon ble High Court has granted liberty to the petitioner by observing that petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of Mangli Impex Ltd. Appeal allowed by way of remand.

Summary

Issues:
Jurisdiction of DRI to issue show-cause notice under Customs Act.

Analysis:
The appeal was filed against Order-in-Original No. 6038/2007, where the importer's counsel raised a preliminary plea regarding the jurisdiction of DRI to issue the show-cause notice. The Hon'ble High Court of Delhi had observed in a previous case that DRI was not competent to issue such notices. The assessee-Respondent cited the Supreme Court decision in Commissioner of Customs vs. Sayed Ali, stating that DRI officers were not proper officers under the Customs Act. Subsequently, amendments were made to the Customs Act and a notification was issued assigning the functions of the proper officer to various officers, including Additional Director General, DRI. The issue of DRI officers having proper jurisdiction to issue show-cause notices came up before various High Courts, resulting in conflicting decisions. The matter reached the Supreme Court, which granted a stay on the Delhi High Court's judgment. Another case before the Delhi High Court granted liberty to review the challenge based on the outcome of appeals filed in the Supreme Court. Following the Delhi High Court's decision in a similar case, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority to first decide the jurisdiction issue after the Supreme Court's decision and then proceed on the merits, ensuring the assessee's right to be heard. The appeal was allowed by way of remand, maintaining the status quo until a final decision is reached.