2017 (9) TMI 899 - AT - Customs

Jurisdiction - power of DRI to act as proper officer and to issue SCN - Held that - the notice issued by the DRI who was not a competent authority as per the ratio laid down in the case of Mangali Impex Ltd. Vs. UOI 2016 (5) TMI 225 - DELHI HIGH COURT - In this connection, we note that similar issues have been dealt with in various cases by the Tribunal recently. It is held that the matters have to be remanded back to the original authority for a decision - appeal allowed by way of remand.

Summary

Issues:
Jurisdiction of D.R.I. Officers as 'proper officer' for demand proceedings under the Customs Act, 1962 prior to April 2011.

Detailed Analysis:

1. Jurisdiction of D.R.I. Officers:
The Tribunal noted that the jurisdiction of D.R.I. Officers to act as 'proper officer' for demand proceedings under the Customs Act, 1962 before April 2011 has been a matter of dispute. Referring to the ruling of the Hon'ble Delhi High Court in the case of Mangali Impex Ltd. Vs. Union of India, it was established that D.R.I. Officers are not competent to issue show cause notices for the period preceding 08.04.2011. Various Tribunal Benches, including Delhi, Chennai, and Calcutta, have set aside orders in similar cases, remanding them for jurisdiction determination post the Supreme Court judgment in the Mangali Impex case. The Tribunal cited a relevant portion from the case of M/s. HR Electronics Vs. Commissioner Of Customs, New Delhi, emphasizing the preliminary issue of jurisdiction concerning D.R.I. Officers under the Customs Act.

2. Legal Amendments and Notifications:
After the Supreme Court's decision in the Commissioner of Customs Vs. Sayed Ali case, amendments were made to section 28 of the Customs Act, 1962 through the Finance Act, 2011, effective from 08.04.2011. Notification No.44/2011-Cus (NT) assigned the functions of the 'proper officer' to officers, including Additional Director General, DRI, from July 6, 2011, onwards. Subsequently, sub-section 11 was inserted under section 28 of the Customs (Amendment and Validation) Act, 2011, granting retrospective effect to various DRI officers as proper officers. However, conflicting decisions arose from different High Courts, leading to the matter being sub judice before the Supreme Court as of 2016.

3. Judicial Interpretations and Stay Orders:
The Tribunal highlighted contrasting views on the jurisdiction of D.R.I. Officers from High Courts such as Mumbai and Telangana/Andhra Pradesh, opposed to the Delhi High Court's stance. The matter eventually reached the Supreme Court, which granted a stay on the Delhi High Court's judgment. Notably, the High Court of Delhi in the case of BSNL Vs. UOI addressed a similar issue, staying the judgment in the Mangali Impex case pending Supreme Court appeals. Following the Delhi High Court's approach in the BSNL case, the Tribunal set aside the impugned orders and remanded the matters for further adjudication, maintaining the status quo until a final decision is reached.

4. Conclusion:
In conclusion, the appeals filed by the appellants were allowed by way of remand, aligning with the principles established by the High Court of Delhi and the totality of facts and circumstances. The Tribunal emphasized the need for a definitive decision on jurisdiction post the Supreme Court's ruling in the Mangali Impex case before proceeding with the merits of the appeals.