TMI Blog2018 (11) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... were used for transportation of export goods from Rajasthan to Mundra, is before this Court, with the following prayers: A. Your Lordships be pleased to issue an appropriate writ order or direction in the nature of writ of certiorari and or any other appropriate writ, order or direction for quashing and setting aside the Order in Original No. KDL/COMMR/45/2013-14 dated 31.12.2013, and remanding the proceedings afresh to the Commissioner of Customs, Kandla for fresh adjudication of the matter; And or in the alternative AA. Your Lordships be pleased to issue an appropriate writ order or direction in the nature of writ of mandamus and or any other appropriate writ, order or direction directing the Cestat Ahmedabad to restore the appeal no. C/11486/2014 arising out of Order in Original no. KDL/COMMR/45/2013-14 dated 31.12.2013 and remand the said matter to the Commissioner of Customs, Kandla; B. Your Lordships be pleased to pending the admission and final hearing of the present petition stay the operation implementation and execution in every manner of the above referred Order in Original dated 31.12.2013. 2 The need to approach this Court, under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit ₹ 80 lakhs as 1% of the total penalty of ₹ 80 crores, imposed. 3.1 Since the petitioner could not deposit the said amount, when the Appeal was listed to report compliance of predeposit, in absence of any pre-deposit made, all appeals, including the petitioner s appeal, were dismissed for noncompliance of the stay order. The order was passed dismissing the appeal on 12.03.2015. The petitioner, preferred an application for restoration of the appeal stating that the petitioner was unaware of the hearing and that this very appellant, i.e. the petitioner, in the other two appeals, was directed only to deposit ₹ 1 lakh and ₹ 10 lakhs respectively and therefore it was not possible for him to deposit a large amount of ₹ 80 lakhs in the third appeal. An application was also preferred for modification of the stay order dated 04.12.2014. In view of such applications filed and pending, petition filed before the Gujarat High Court was withdrawn. The Tribunal heard these applications seeking restoration of appeal and modification of stay. One of the arguments advanced therein by the advocate for the noticees was that DRI had no jurisdiction to issue show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the stay applications. There the penalty amount assessed qua the petitioner was ₹ 11 crores (approximately). The Tribunal directed the petitioner to deposit ₹ 10 lakhs. The petitioner deposited the amount on 26.11.2014. 4.3 Apart from claiming financial hardship to deposit an additional amount of ₹ 5 lakhs, in addition to a total deposit of ₹ 16 lakhs, in all in the two identical appeals and the present appeal, it was Mr.Dave s submission that, after passing of the order dated 13.10.2016, dismissing the appeal in the instant O.I.O under challenge, the Tribunal, by an order in an identical appeal by order dated 12.09.2017, in the matter of the same appellant remanded the case back to the adjudicating authority. 4.4 Mr. Dave invited our attention to the order dated 12.09.2017 passed by the Tribunal, in an identical appeal. The order reads as under: 4. We find that this Tribunl in Rahul Arora s case (supra) taking into consideration the principles of law relating to authority of the DRI officers to issue show cause notice for the period prior to 6.7.2011 under the Customs Act, 1962 has observed that there are two view possible on the said issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal dated 12.9.2017 at Annexure-M to the petition and similar orders making remand have been challenged or not. NOTICE returnable on 3rd August 2018. 6 Mr. Mitesh Amin, learned Counsel, has appeared for the respondent Custom Authorities i.e. the Commissioner of Customs, Kandla. In the submission of Mr.Amin, the order of remand, dated 12.09.2017, is based on the judgment of Mangali Exports (supra) of the Delhi High Court, which is a subject matter of an SLP pending before the Supreme Court. Similar treatment, therefore, cannot be given to the appellant by restoring the appeal and remanding the matter to the adjudicating authority. Mr.Amin also invited our attention to the observations and submissions at page 360 of the Tribunal s order dated 14.06.2016. Drawing our attention to the same, Mr. Amin submitted that, in the case of Mangali Exports, the Court had declared the retrospective Validation Act as ultra vires but upheld the amendment for the period after 08.04.2011. Since the show cause notice in the present case was issued on 14.08.2012, it was valid. 7 Having heard the learned advocates for the respective parties, what emerges from the record and is also undisp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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