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CC (Preventive) , New Delhi Versus Shri Rakesh Kumar Wadhawan, Shri Sarang Wadhawan, Directors And Privilege Airways Private Ltd.

2017 (9) TMI 897 - CESTAT NEW DELHI

Jurisdiction - power of Commissioner (Preventive) to issue SCN - Held that: - the notice issued by the Commissioner (Preventive) who was not a competent authority as per the ratio laid down in the case of Mangali Impex Ltd. Vs. UOI [2016 (5) TMI 225 - DELHI HIGH COURT] - In this connection, we note that similar issues have been dealt with in various cases by the Tribunal recently. It is held that the matters have to be remanded back to the original authority for a decision - appeal allowed by wa .....

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in the impugned order. 3. In this connection, we note that similar issues have been dealt in various cases by the Tribunal recently. It is held that the matters have to be remanded back to the Original Authority for a decision after the legal issue is settled by the Hon ble Supreme Court. The decision of the Tribunal in one such case vide Final order No.53941-53942 of 2017 dated 12/06/2017 is reproduced below :- During the course of arguments, the appellant s counsel has raised the preliminary .....

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uest to decide the matter on merit. 3. We have heard both the parties at length and gone through the material available on record. 4. From the record, it appears that the preliminary issue emerges in the present appeal is regarding the jurisdiction of the DRI Officers to issue the show cause notice under the Customs Act. The assessee-Appellant had taken a stand that in terms of the Hon ble Apex Court decision in the case of Commissioner of Customs Vs. Sayed Ali, 2011 (265) 17 (S.C.)], the DRI of .....

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d 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. 7. Subsequently, sub-Section (11) was inserted un .....

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at even the new inserted Section 28 (11) does not empower either the officers of DRI or the DGCEI to issue the SCN for the period prior to 08/04/2011. Thus, it is seen that the said order of the Hon ble Delhi High Court is in favour of the assessee and against the Revenue. 9. However, it is further noticed that the said issue was also the subject matter of Hon ble Mumbai High Court in the case of Sunil Gupta vVs. Union of India [2015 (315) E.L.T. 167 (Bom) as also of the Hon ble High Court of Te .....

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