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TMI Blog2018 (5) TMI 2044X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, while disposing off the appeal in Alumeco India Extrusion Ltd v. Commissioner of Central Excise, Customs Service Tax, Hyderabad-I [ 2009 (5) TMI 402 - CESTAT, BANGALORE ], has considered it appropriate not to dispose off matters in which this preliminary issue has been agitated. Subsequent decisions of the Tribunal have set aside impugned orders, arising from such notices, for remand back to the original authority till the competence, or lack thereof, is no longer in doubt. The principle of finality of litigation may have the effect of sanctifying illegal proceedings if, ignoring the issue of jurisdiction, merit alone is considered before competence is decided by the Hon ble Supreme Court. The inequity of a recovery upheld now with ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-TIOL-2587-CESTAT-DEL], ITC Infotech India Ltd v. Commissioner of Customs, New Delhi [2018-TIOL-1309-CESTAT-DEL] and Vijay Silk House Pvt Ltd v. Commissioner of Customs & Service Tax, Bangalore [2017-TIOL-1803-CESTAT-BANG] the appeals were allowed by way of remand to await the final decision by the Hon'ble Supreme Court on the validity of jurisdiction. 3. We have heard Learned Authorised Representative who submits that the judgment of the Hon'ble High Court of Delhi in re Mangali Impex has been stayed by the Hon'ble Supreme Court and that the Hon'ble High Court of Andhra Pradesh in Vuppalamritha Magnetic Components Ltd v. DRI Zonal Unit, Chennai [2017 (345) ELT 161 (AP)], after considering the decision of the Hon'ble H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that very competence in Sun Polytron Industries Ltd v. Union of India [2338/2016 in customs appeal no 53/2016]. The remand orders of the Tribunal are, therefore, not inconsistent with the views of the jurisdictional High Court. 6. Moreover, the decision of the Hon'ble High Court of Andhra Pradesh in Vuppalamritha Magnetic Components Ltd v. DRI Zonal Unit, Chennai [2017 (345) ELT 161 (AP)], which held that '10. At the outset, we are of the considered view that the writ petition is not maintainable. The show cause notice dated 30-7-2009, which is under challenge in the present writ petition, is no longer in force. The show cause notice has already culminated in a order of adjudication and the order of adjudication has also been confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt out that the doctrine of merger is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The underlying principle behind the doctrine of merger is that there cannot be more than one decree. 13. The issue can be looked at from another aspect also. Today, the effect of our allowing the writ petition and setting aside the show cause notice would be to set at naught, the order of adjudication, the judgment of CESTAT, the judgment of this Court and the order of Supreme Court. What cannot be achieved by the petitioner directly cannot be achieved by them indirectly. 14. The contention that all proceedings founded upon a show cause notice that was inherently lacking in jurisdiction, would be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings if, ignoring the issue of jurisdiction, merit alone is considered before competence is decided by the Hon'ble Supreme Court. The inequity of a recovery upheld now with jurisdiction to do so being nullified later is not particularly appealing to a judicial institution. Should it be held otherwise, there is no detriment to Revenue as the proceedings would then be reinstated. 7. Considering the criticality of competence to issue show cause notice, the ends of justice will be appropriately met if the impugned order is set aside and the matter remanded back to the adjudicating authority for a fresh decision after the question of jurisdiction of officers of Directorate of Revenue Intelligence to issue notice for recovery of duty is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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