TMI Blog2017 (4) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... operation thereof stayed, the judgment of lower court is in jeopardy. It would be proper to wait for decision of the Apex Court on the aforesaid jurisdiction issue. Therefore, all these appeals are remanded back to the concerned adjudicating authorities without keeping that pending in Tribunal to pass appropriate orders on the basis of the outcome of the Supreme Court in the Mangali Impex case following course of natural justice. Matter on remand. - C/113/2006 - 40553-40578/2017 - Dated:- 5-4-2017 - Shri D.N. Panda, Judicial Member And Shri Madhu Mohan Damodhar, Technical Member Shri K. Veerabhadra Reddy, JC (AR) Shri A. Cletus, ADC (AR) Appeared for the Revenue C/114/2006, C/149/2006, C/152/2006, C/153/2006, C/457/ 2006, C/459/ 2006, C/Misc./40091/2017, C/Misc./ 40092/2017 C/274/2007, C/309/2007, C/412/2007, C/4/2008, C/5/2008, C/120/2008, C/163/2008, C/164/ 2008, C/165/ 2008, C/223/2008, C/224/2008, C/236/2008, C/245/2008, C/246/2008, C/247/2008, C/99/2008, C/100/2008, C/125/2008, C/126/2008 K.B.S Manian Brothers Pvt. Ltd. S. Suresh, KBS Manian Brothers Pvt. Ltd, K.V.S Exports Pvt. Ltd., Bharath Trading Corpn., Srinidhi Fabrics Pvt. Ltd., Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 8.4.2011. 3. On the introduction of sub-section (11), ld. counsel says that sub-section (11) was not in force before issuance of the SCN in all these appeals. Therefore, that cannot be read as a section enabling Customs officer to be proper officer when he has already issued notice before 8.4.2011 as a measure of curing his defect. 4. Proper officer is therefore who is defined by sub-section (2) of section 34 of the Customs Act, 1962 and was well analyzed by Apex Court in the case of Commissioner of Customs Vs Sayed Ali - 2011 (265) ELT 17 (SC) . The proper officer may be customs officer but a customs officer may not be a proper officer what that is the ratio laid down by apex court in para-10 of the said judgement. He placed reliance on paras-10 to 16 of the judgement in Sayed Ali case to submit that a customs officer appointed under section 4 5 of the Customs Act, 1962 does not ipsofacto becomes 'proper officer' in terms of Section 34 (2) of the said Act. Sections 4 5 are not power conferring sections. Unless DRI officers are notified to be 'proper officers' for the purpose of section 28 in terms of Section 34 (2), they are never proper offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation-2 supports the stand of the appellant and is well covered by law as that was existing before sub-section (11) was enacted. 8. Appellant relied on para 25.1 of Hem Chand Gupta Sons Vs CC (ICD) New Delhi - 2015 (330) ELT 161 (Tri.-Del.) to submit that said decision of the Tribunal has followed Sayed Ali judgement and elaborately explained the background of the law which was well known to department when they appealed to Supreme Court but they withdrew the appeal from Supreme Court mentioning that they shall approach the Delhi High Court and no review has been filed before Delhi High Court so far. 9. Reiterating his stand, it is the submission of ld. counsel that section 28 as that was in the statute book even before section 10 was incorporated. That law will only prevail over SCNs and that law has the legal infirmity of not empowering customs officers to be proper officer. 10. In short, it was explained that these appeals should be allowed without any remand or keeping it pending in Tribunal. 11. The arguments of Shri S.Krishnanandh, Advocate were adopted by the appellants in appeals against Sl.No.16 17, 47, 51 to 56 of the cause list and Sl.No.10 to 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , DGCEI etc. to issue SCNs even for the period prior to 8th April 2011 subject to the time limits under Section 28(4) of the Act being adhered to. 39. It was submitted that in the normal course, the customs duty is only assessed by the jurisdictional custom officers of the Board. The officers of the Customs (Preventive) have been appointed for the purposes of investigating evasion of customs duty in their specified jurisdictions. The issuing and adjudication of SCNs under Section 28 of the Act usually is undertaken by the jurisdictional Customs officer. 40. According to the Respondents, it is a well-settled legal proposition that the legislature can make a retrospective legislation after curing the defects that led to their invalidation in the first place. A validation Act can be enacted to retrospectively negate the effect of the judgments and orders of competent Courts provided the validating legislation removes the cause of invalidity or the basis that had led to those decisions. It was submitted that inadvertent defects in statutes should be permitted to be corrected by the legislature through the device of 'small repairs'. There is no vested right in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all persons appointed as officers of Customs under sub-section (1) of section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section. Explanation 1 .- For the purposes of this section, relevant date means,- (a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof or re-assessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest. Explanation 2. - For the removal of doubts, it is hereby declared that any non-levy, short-levy or erroneous refund before the date on which the Finance Bill, 2011 receives the assent of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have been given a retrospective effect. These Notifications were holding the field and were not quashed or set aside. In the teeth of such Notifications, the legislature stepped in to clarify the position that if the functions of the Customs officer can be entrusted or assigned by the Central Government or the Board in terms of Section 6 of the Customs Act, 1962, then, all such Notifications, have been validly issued and enforced. They enable the Parliament to clarify that the officers mentioned therein shall be deemed to be the proper officers for the purposes of Section 17 and 28 of the Act. Precisely, that has been done in the instant case. 24 . If that has been done, then, no assistance can be derived from the Judgment of the Hon ble Supreme Court in the case of Sayed Ali (supra) . There, for want of jurisdiction or competence in the Collector of Customs (Preventive), the show cause notice was quashed by the Tribunal and that order was upheld by the Supreme Court. Before us, the issue is not whether any Collector of Customs (Preventive) could be said to be on par with the officers mentioned in the earlier Notification dated 26th April, 1990. The assignment of function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Directorate of Revenue Intelligence having been entrusted and assigned the functions as noted above, they are deemed to have been possessing the authority, whether in terms of Section 28 un-amended or amended and substituted as above. In these circumstances, for these additional reasons as well, the challenge to this sub-section must fail. 14.8 However, a contrary view was taken by the Hon ble Delhi High Court in Mangali Impex Ltd. Vs UOI 2016 (335) EL 605 (Del.) , inter alia, holding that newly inserted Section 28 (11) does not empower officers of DRI and DGCEI to either proceed to adjudicate SCNs already issued by them for period prior to 08-04-2011 or to issue SCNs for period prior to 08-04-2011. The Delhi High Court placed reliance on Sayed Ali case (supra). The relevant portion of the Delhi High Court's order is reproduced below :- Conclusion on the effect and validity of Section 28(11) 70.1 The net result of the above discussion is that the Department cannot seek to rely upon Section 28(11) of the Act as authorising the officers of the Customs, DRI, the DGCEI etc. to exercise powers in relation to non-levy, short-levy or erroneous refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force. The show cause notice has already culminated in a order of adjudication and the order of adjudication has also been confirmed by the Tribunal, the High Court and the Supreme Court. The doctrine of merger has come into play and the show cause notice is not available any more for the petitioner to challenge. 11. Heavily reliance is placed by Mr. P. Vikram, learned counsel for the petitioner on two things viz., (1) the judgment of the Delhi High Court in Mangali Impex Ltd., (supra) ; and (2) the judgment of a Division Bench of the Punjab Haryana High Court in Rajinder Arora and Others v. Union of India and Others [2016 (339) E.L.T. 370 (P H)] . In Mangali Impex Ltd., (supra), the Division Bench of the Delhi High Court set aside even the show cause notices, despite the fact that the show cause notices had already culminated in orders of finality. In Rajinder Arora and Others v. Union of India and others (1 supra) , a Division Bench of the Punjab Haryana High Court also dealt with a case where the show cause notice had culminated in a order of adjudication, but it was the subject matter of an appeal before the Tribunal. The Punjab Haryana High Court held that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put a seal on the present attempt on the part of the petitioner to reopen the issue all over again. 15.1 Discernably, conflicting views have emerged from the Judgments of different High Courts on this issue. 15.2 Hon ble Supreme Court has ordered stay of operation of the Mangali Impex judgement (supra) vide its order dt.01-08-2016 as reported in 2016 (339) ELT A49 (SC) reading, is as follows : The Supreme Court Bench comprising Hon ble Mr. Justice Madan B. Lokur and Hon ble Mr. Justice R.K. Agrawal on 1-8-2016 issued notice in the Petition for Special Leave to Appeal (C) No.20453 of 2016 filed by Union of India against the Judgment and Order dated 3-5-2016 of Delhi High Court in W.P. (C) No.441 of 2013 as reported in 2016 (335) E.L.T. 605 (Del.) (Mangali Impex Ltd. v. Union of India) . While issuing the notice in the petition, the Supreme Court passed the following order : Exemption from filing c/c of the impugned judgment and permission to file synopsis and list of dates granted. Issue notice. In the meanwhile, there shall be a stay of operation of the impugned judgment and order passed by the High Court of Delhi. The Delhi Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
