2021 (12) TMI 1118 - HC - Customs

Validity of remand of the matter - proper officer for issuance of SCN - Whether the Tribunal was justified in remanding the matter back for a fresh decision when the matter was subjudice before the Hon'ble Supreme Court in light of the stay order passed in M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS 2016 (5) TMI 225 - DELHI HIGH COURT ? - HELD THAT - Admittedly, the appeal filed by the Revenue as against the decision of the High Court of Delhi in the case of M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS 2016 (5) TMI 225 - DELHI HIGH COURT is pending before the Hon'ble Supreme Court as UNION OF INDIA VERSUS MANGALI IMPEX LTD. 2016 (8) TMI 1181 - SC ORDER . Therefore, if such is the factual position, then the Tribunal ought to have kept the matter pending on its file instead of setting aside the adjudication order and remanded the matter back to the adjudicating authority and await the decision of the Hon'ble Supreme Court. Identical impugned order was tested for its correctness by the Hon'ble Division Bench of this court in COMMISSIONER OF CUSTOMS (PORT) , KOLKATA VERSUS M/S. HALDIA PETROCHEMICALS LTD. 2019 (6) TMI 1650 - CALCUTTA HIGH COURT . The appeal filed by the Revenue was allowed and, consequently, the appeal filed by the respondent before the Tribunal was restored to its file and the Tribunal was directed to await the decision of the Hon'ble Supreme Court. The appeal filed by the Revenue is allowed and the order passed by the Tribunal is set aside and the appeal is restored to the file of the Tribunal with a direction to the Tribunal to await the decision of the Hon'ble Supreme Court in the appeal filed against the decision of the High Court of Delhi in the case of Mangali Impex Ltd. - answered in favour of the Revenue.

Summary

Issues:
1. Delay in filing the appeal by the Revenue challenging the order passed by the Tribunal.
2. Justification of remanding the matter back for a fresh decision by the Tribunal when the matter was subjudice before the Hon'ble Supreme Court.

Issue 1: Delay in filing the appeal by the Revenue:
The High Court of Calcutta, in this judgment, addressed the inordinate delay in filing the appeal by the Revenue challenging the order passed by the Tribunal. The Court acknowledged the delay and considered the interest of justice, citing a previous case involving similar issues. Referring to the case of Commissioner of Customs [Port], Kolkata vs. M/s. Haldia Petrochemicals Ltd., where the Revenue's appeal was allowed, the Court exercised discretion and condoned the delay. The application for condonation of delay was disposed of accordingly.

Issue 2: Justification of remanding the matter back for a fresh decision:
The appeal filed by the Revenue under section 130 of the Customs Act, 1962, was directed against the order passed by the Tribunal, which remanded the matter back to the file of the Assessing Officer. The Revenue raised a substantial question of law questioning the Tribunal's decision to remand the matter back for a fresh decision while the matter was subjudice before the Hon'ble Supreme Court. The High Court noted that the appeal filed by the Revenue against the decision of the High Court of Delhi in a specific case was pending before the Supreme Court. The Court emphasized that the Tribunal should have kept the matter pending instead of setting aside the adjudication order and remanding it back. Citing a previous judgment involving similar issues, the Court allowed the Revenue's appeal, set aside the Tribunal's order, and restored the appeal to the file of the Tribunal with a direction to await the decision of the Hon'ble Supreme Court. The substantial question of law was answered in favor of the Revenue, and the other connected applications were disposed of accordingly.

This comprehensive analysis of the judgment by the High Court of Calcutta highlights the issues of delay in filing the appeal by the Revenue and the justification of remanding the matter back for a fresh decision by the Tribunal. The judgment provides a detailed explanation of the Court's reasoning and references previous cases to support its decision.