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2018 (1) TMI 1687 - AT - CustomsJurisdiction - proper officer to issue SCN - Whether DRI/SIIB is not competent to issue show-cause notice? - HELD THAT:- From the record, it appears that the preliminary issue which emerges in the present appeal is regarding the jurisdiction of the DRI to issue the show-cause notice under the Customs Act. The assessee-Respondent has taken a stand that in terms of the Hon’ble Apex Court decision in the case of COMMISSIONER OF CUSTOMS VERSUS SAYED ALI [2011 (2) TMI 5 - SUPREME COURT], the DRI officers were not proper officers in terms of section 2(34) of the Customs Act, 1962 - It is also seen that after the declaration of law by the Hon’ble Supreme Court (Supra), the provisions of section 28 of the Customs Act, 1962 were amended with effect from 08.04.2011 vide Finance Act, 2011. It is also noticed that in order to overcome the situation created by the judgment of Hon’ble Supreme Court in the case of Sayed Ali, Notification No.44/2011-Cus (NT), dated July 6, 2011 was issued by the CBEC, assigning the functions of the proper officer to various officers (including Additional Director General, DRI) mentioned in the notification, for the purposes of Section 28 of the Act. Thus, 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. Being conflicting decisions of various High Courts, finally the matter reached to Hon’ble Supreme Court who on 07.10.2016 granted the stay of operation of the judgment passed by the High Court of Delhi. Thus the issue is subjudice before the Hon’ble Supreme Court in UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER]. The impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority to decide the issue afresh after the judgment of the Hon’ble Supreme Court in the case of Mangli Impex.
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