By TIOL News Service

MUMBAI, JULY 27, 2017: IN the matter of the appeals filed, the preliminary plea taken is that DRI has issued show cause notice without jurisdiction as has been held in Mangali Impex - 2016-TIOL-877-HC-DEL-CUS.

Incidentally, in this matter, the CBEC had issued an Instruction dated June 29, 2016 wherein it is inter alia informed -

"…Since the order dated 03.05.2016 of High Court of Delhi challenges the constitutional validity of sub-section (11) of Section 28 of the Customs Act, 1962, the Board has decided to file an SLP in the case i.e. W.P.NO.441/20013 before the Hon'ble Supreme Court.

3. In view of the above, field formations are requested to  transfer all the SCNs issued by DRI,DGCEI, SIIB, Preventive prior to 06.07.2011 and which are pending adjudication to the Call Book,  till disposal of the matter in the Supreme Court."

So also, different Benches of Tribunal have taken view that the matter should go back to the original authority for passing appropriate order on the basis of the apex Court's decision in the above case.

Revenue, on the other hand, opposes above proposition on the ground that the Bombay High Court in the case of Sunil Gupta - 2014-TIOL-1949-HC-MUM-CUS had held that DRI has jurisdiction to issue show cause notice for the material period.

The Division Bench, therefore, observed -

"3. In view of the rival submissions as above and also the Tribunal having taken a view that the appeal should go back to the adjudicating authority till the decision of the apex Court, it is proper to send back all the appeals to the adjudicating authority who shall pass appropriate order on the basis of outcome of the apex Court judgment in MangaliImpex case which has been admitted in Civil Appeal No. 20453 of 2016 …, granting reasonable opportunity of hearing to both the sides. We may state that when an appeal is admitted by apex Court whether the order appealed is stayed or not makes no difference to law since the order appealed is under challenge and the Tribunal should not overreach the jurisdiction of the apex Court as has been held by the apex Court in Union of India v. West Coast Paper Mills Ltd. … 2004-TIOL-14-SC-LMT-LB ."

All the five appeals were remanded to the adjudicating authority.

In passing: Also see DDT 2879 & DDT 2970 .

(See 2017-TIOL-2619-CESTAT-MUM)