Madras High Court
The Commissioner Of Customs vs Shri Sanket Praful Tolia on 4 June, 2021
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam, S.Ananthi
C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 &
445 of 2021
C.M.A(MD)No.433 of 2021:
The Commissioner of Customs
Custom House
New Harbour Estate
Tuticorin – 628 004 ... Appellant
-vs-
Shri Sanket Praful Tolia
No.704, Sankalp Siddhi
Thakur Complex, Kandivali East
Mumbai – 400 101
Maharashtra ... Respondent
Civil Miscellaneous Appeal filed under Section 130 of the Customs Act,
1962, against the common Final Order No.40935/2018, dated 20.03.2018,
passed by the Customs, Excise and Service Tax Appellate Tribunal, South
Zonal Bench, Chennai.
For Appellant : Mr.R.Aravindan
For Respondent : Mr.Hari Radhakrishnan
___________
https://www.mhc.tn.gov.in/judis/
Page 1 of 8
C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
2021
COMMON JUDGMENT
[Judgment of the Court was made by T.S.SIVAGNANAM, J.] These civil miscellaneous appeals have been filed by the Commissioner of Customs, Tuticorin, under Section 130 of the Customs Act, 1962 (hereinafter, referred to as “the Act”), against the common order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (hereinafter, referred to as “the Tribunal”), in common final order Nos.40929 – 40940 of 2018, dated 20.03.2018.
2. The Revenue has raised the following substantial questions of law for consideration:
“9. When Sec.28(11) of Customs Act, 1962 envisages that 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, whether CESTAT is correct in disputing/questioning the jurisdiction of DRI to issue SCN?
10. In view of the foregoing facts and circumstances of the case, the Appellant, therefore, humbly prays that this Hon'ble Court may be pleased to consider the above appeal and set aside the impugned order of ___________ https://www.mhc.tn.gov.in/judis/ Page 2 of 8 C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 & 445 of 2021 the CESTAT in Common Final Order No. 40932/2018, dated 20.03.2018 and remand/restore the appeal to the CESTAT for fresh consideration of the matter on merits once the case of M/s.Mangali Impex reaches finality.”
3. We have heard Mr.R.Aravindan, learned Senior Standing Counsel for the appellant / Revenue and Mr.Hari Radhakrishnan, learned counsel accepting notice for the respondents / assessees.
4. The issue, which fell for consideration before the Tribunal, was whether the Officers of the Directorate of Revenue Intelligence (in short, “DRI”) are proper officers for the purpose of Section 28 of the Customs Act, 1962 (in short, “the Act”) and as to whether they are empowered to issue demand notice under Section 28 of the Act. In all these cases, show-cause notices were issued by DRI. The Tribunal, on noticing the same, referred to the decision of the Delhi High Court in the case of Mangli Impex vs. Union of India [2016 (335) ELT 605 (Del)], wherein, it was held that DRI is not comptent to issue show-cause notice. Admittedly, the correctness of the said Judgment is now pending consideration before the Honourable Supreme Court and an order of interim stay has been granted. Therefore, the appropriate procedure should have been adopted by the Tribunal is to await the decision of the Honourable Supreme Court. However, by the impugned ___________ https://www.mhc.tn.gov.in/judis/ Page 3 of 8 C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 & 445 of 2021 orders, the Tribunal has set aside the orders passed by the First Appellate Authority, namely, the Commissioner of Central Excise (Appeals), Trichy and remanded the matter to the Adjudicating Authority, namely, the Additional Commissioner of Customs, Tuticorin.
5. The Revenue is before us contending that the Tribunal ought not to have remanded the matter to the Adjudicating Authority and it should have taken a decision on the merits of the matter. The Revenue would further contend that Section 28(11) of the Act envisages that all persons appointed as officers of Customs under Sub-Section (1) of Section 4 of the Act before the sixth day of July, 2011 shall be deemed to have and always had the power of assessment under Section 17 of the Act and shall be deemed to have been and always had been the proper officers for the purpose of the said Section. In our view, this question cannot be decided at this juncture as the same is now pending before the Honourable Supreme Court. However, we do not agree with the order passed by the Tribunal in setting aside the order passed by the Appellate Authority and remanding the matter to the Adjudicating Authority.
6. In the case of the Commissioner of Customs, Tuticorin vs. The Customs, Excise & Service Tax Appellate Tribunal and others [C.M.A.(MD) Nos.375 to 379 of 2018], a Division Bench of this Court, to which one of us (T.S.SIVAGNANAM, J.) was a party, had an occasion to test ___________ https://www.mhc.tn.gov.in/judis/ Page 4 of 8 C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 & 445 of 2021 the correctness of an identical order passed by the Tribunal and by a common Judgment, dated 04.10.2019, set aside the order of the Tribunal and restored the appeals to the file of the Tribunal to be kept pending and await the decision of the Honourable Supreme Court. It was also made clear that the appellant – Department shall not initiate any coercive action against the respondents / assessees. The operative portion of the said Judgment reads as follows:
“3.In these appeals, the Revenue has raised the following substantial questions of law,
(i)as to whether the Tribunal was right in allowing the appeals on the ground that the jurisdiction issue has to be decided by the Hon-ble Supreme Court in the appeal filed against the decision of the High Court of Delhi, in the case of MANGALI IMPEX V. UNION OF INDIA reported in 2016(335)ELT 605 (Del);
(ii)The next question is as to whether the Tribunal was right in allowing the appeals and simultaneously directing status quo to be maintained till a final decision is arrived at.
4.Identical orders were tested for its correctness in the Principal Bench to which one of us (T.S.S.,J,) is a party. After elaborate arguments, the Court held that the Tribunal was not justified in allowing the appeal and consequently directing status quo till the final decision of the Hon'ble Supreme Court and the appropriate procedure that should have been adopted is to keep ___________ https://www.mhc.tn.gov.in/judis/ Page 5 of 8 C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 & 445 of 2021 the appeals pending and await the decision of the Hon'ble Supreme Court in the appeals filed against the decision in Mangali Impex. Therefore, we are inclined to take similar view in these appeals as well. Accordingly, the appeals filed by the Revenue are allowed and the order passed by the Tribunal is set aside and the appeals are restored to file of the Tribunal and the Tribunal shall keep the appeals pending and await the decision of the Hon'ble Supreme Court. It is made clear that the Department shall not initiate any coercive action against the respondents assessees and await final decision in the appeals, which have been restored to file of the Tribunal. No costs.”
7. We find that the above decision can be fully made applicable to the facts of the present case as the orders impugned in these appeals are identical to that of the orders impugned in C.M.A.(MD) Nos.375 to 379 of 2018.
8. Accordingly, the civil miscellaneous appeals are allowed and the impugned final order Nos.40929 to 40940 of 2018, dated 20.03.2018, passed by the Tribunal, are set aside and the appeals are restored to the file of the Tribunal with a direction to keep the appeals pending and await the decision of the Honourable Supreme Court. We make it clear that the appellant – Department shall not initiate any coercive action against the respondents / assessees and await the final decision in the appeals, which ___________ https://www.mhc.tn.gov.in/judis/ Page 6 of 8 C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 & 445 of 2021 have been restored to the file of the Tribunal. Consequently, the substantial questions of law are left open. No costs.
[T.S.S., J.] [S.A.I., J.]
04.06.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the Judgment may
be utilized for official purposes,
but, ensuring that the copy of the
Judgment that is presented is the
correct copy, shall be the
responsibility of the advocate /
litigant concerned.
krk/ps
To:
The Presiding Officer,
Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
___________ https://www.mhc.tn.gov.in/judis/ Page 7 of 8 C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 & 445 of 2021 T.S.SIVAGNANAM, J.
and S.ANANTHI, J.
krk/ps C.M.A.(MD) Nos.433, 434, 435, 436, 437, 439, 440, 441, 442, 443, 444 & 445 of 2021 04.06.2021 ___________ https://www.mhc.tn.gov.in/judis/ Page 8 of 8