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Commissioner of Customs, Chennai Versus M/s. Divis Laboratories Ltd. And Vice-Versa

2017 (9) TMI 684 - CESTAT CHENNAI

Jurisdiction - power of DRI to issue SCN - whether DRI is competent to issue show-cause notice? - Held that: - 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 fu .....

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issue the SCN or adjudicate for the period prior to 8.4.2011. - Recently, the Hon’ble High Court of Delhi in the case of BSNL Vs. UOI [2017 (6) TMI 688 - DELHI HIGH COURT] has dealt with the identical issue where the notice was also issued by DRI. The Hon’ble High Court of Delhi has considered the judgment in the case of Mangli Impex Vs. UOI which is stayed by the Hon’ble Supreme Court. Finally the Hon’ble High Court has granted liberty to the petitioner by observing that petitioner is permi .....

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the Respondent-Assessee ORDER Per B. Ravichandran The miscellaneous application by the respondent is for recalling the Final Order No. 40022/2017 dated 2.1.2017 passed in the appeal filed by Revenue. 2. The ld. counsel submitted that against the very same impugned order, the respondents preferred another appeal No.C/159/2007 which is still pending disposal. He submitted that the Tribunal earlier on 19.12.2016 while hearing the respondent s appeal observed that the Revenue s appeal against the sa .....

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ice of hearing. He prayed for recalling the final order as they would like to submit their case on merit. In any case, their appeal is still pending which will have implication if this order is allowed to stand. 3. We have heard both sides and perused the records. 4. Admittedly, the Tribunal ordered for tagging both the appeals which are against the same common impugned order. However, due to certain lapse on the part of the Registry, tagging could not happen and this final order came to be pass .....

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has observed that the DRI is not competent to issue show-cause notice. Hence, the request is being made to set aside the present proceedings where the show-cause notice was issued by the DRI/DGCEI. 6. On the other hand, Ld. AR for the Department has justified the order passed by Commissioner of Customs and made a request to decide the matter on merit. 7. We have heard both the parties and gone through the material available on record. 8. From the record, it appears that the preliminary issue wh .....

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ction 28 of the Customs Act, 1962 were amended with effect from 08.04.2011 vide Finance Act, 2011. 10. 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 (supra), 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 t .....

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.e. for the period subsequent to the amendment, the matter i.e. the DRI officers having the proper jurisdiction to issue the SCN or not had came up before the Hon ble Delhi High Court in the case of Mangali Impex vs. Union of India [2016 (335) ELT 605 (Del.)], and the High Court inter alia, held that even the new inserted section 28 (11) does not empower either the officers of DRI or the DGCEI to issue the SCN or adjudicate for the period prior to 8.4.2011. Thus, it is seen that the said order o .....

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