The Commissioner Of vs M/S Mwg Bio Tech Pvt Ltd
2021 Latest Caselaw 5325 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 2ND DAY OF DECEMBER, 2021

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

                    C.S.T.A.No.15/2018

BETWEEN :

1.      THE COMMISSIONER OF CENTRAL EXCISE,
        CUSTOMS AND SERVICE TAX,
        BENGALURU-I, NULL POST BOX NO.5400,
        C.R.BUILDING, BENGALURU-560001
        KARNATAKA

2.      COMMISSIONER OF CUSTOMS AND
        SERVICES TAX BANGALORE-CUS,
        C.R.BUILDING, QUEENS ROAD,
        P.B.NO.5400, BENGALURU-560001
        KARNATAKA                             ...APPELLANTS

              (BY SRI JEEVAN J. NEERALGI, ADV.)

AND :

M/s MWG BIO TECH PVT. LTD.,
NO.17, 5TH CROSS, VIDYANAGAR,
OPP. SKF BEARING, HOSUR MAIN ROAD,
BENGALURU-560100, KARNATAKA.                 ...RESPONDENT


      THIS CSTA IS FILED UNDER SECTION 130(A) OF THE
CUSTOMS ACT, ARRISING OUT OF ORDER DATED 15.02.2018
PASSED IN FINAL ORDER NO.20672/2018 (COMMON ORDER
No.20671-20677/2018),  PRAYING TO   I. ANSWER THE
SUBSTANTIAL QUESTIONS OF LAW FRAMED ABOVE IN FAVOUR
                             -2-



OF THE APPELLANT. II. SET ASIDE THE IMPUGNED FINAL
ORDER    NO.20672/2018   (COMMON   ORDER  No.20671-
20677/2018) DATED 15.02.2018 PASSED BY THE CESTAT,
SOUTH ZONAL BENCH, BENGALURU.

      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal is filed by the Revenue under Section

130 of the Customs Act, 1962 ('Act' for short)

challenging the Final Order No.20672/2018 dated

15.02.2018 passed by the Customs, Excise and Service

Tax Appellate Tribunal, South Zonal Bench, Bangalore

('CESTAT' for short) raising the following substantial

question of law:-

"Whether on the facts and in the circumstances of the case, the CESTAT was correct in setting aside the order passed by the adjudicating authority and order of remand to first decide the jurisdictional issue after the pronouncement of decision by the Apex Court in the case of Mangali Impex when provisions of Section 28 of the Customs Act being amended assigning the functions of proper officers to various DRI officers with retrospective effect

and also when the similar issue is under consideration before the Apex Court and recorded perverse finding?"

2. The respondent - assessee is engaged in the

business of manufacture of Oligos and also providing

DNA sequencing services. Pursuant to the show-cause

notice issued by the Revenue as to why the two DNA

analyzers imported should not be treated as second-

hand machinery and on quantification of duty, penalty

and other aspects, the assessee replied and sought to

drop the proceedings. The adjudicating authority after

considering the reply concluded that the two DNA

analyzers ought to be treated as second-hand

machinery rejecting the declared value, determined the

consequential duty along with the applicable interest

and penalty by order dated 29.09.2008.

3. The assessee being aggrieved by the order-

in-original preferred an appeal before the CESTAT. The

CESTAT by order dated 15.02.2018 proceeded to set

aside the order and remanded the matter to the

adjudicating authority to decide the jurisdiction first

and then proceed with the matter on merits subject to

the appeal pending before the Hon'ble Apex Court in the

case Union of India vs. Mangali Impex Ltd., reported

in 2016 (339) ELT A49 (SC) involving the

determination of jurisdiction of DRI to issue show-cause

notice prior to April, 2011. Hence, this appeal by the

Revenue under Section 130 of the Act raising the

aforesaid substantial question of law.

4. Learned counsel for the appellant-Revenue

argued that the CESTAT committed an error in setting

aside the order of the adjudicating authority with a

direction to redo the same without deferring the matter

when the issue involved herein is the subject matter of

the appeal before Hon'ble Apex Court in the case of

Mangali Impex Ltd., supra.

5. It is discernible from the impugned order

that the CESTAT has recorded the submissions made by

both sides who indeed had submitted that in the cases

involving the very same issue and in similar set of facts,

the Tribunal has remanded the matter back to the

original authority to decide the issue of jurisdiction,

after the availability of the decision of the Hon'ble Apex

Court in the case of Mangali Impex Ltd., supra. A

reference is also made to the decision of the Tribunal in

the case Vijay Silk House Pvt. Ltd., vs. CC & ST,

Bangalore [Final Order No.20521-20522/2017 dated

24.04.2017]. On recording the same, it is made further

clear that the adjudicating authority has to first decide

the issue of jurisdiction, after the availability of the

decision of the Hon'ble Apex Court in the case of

Mangali Impex Ltd., supra. In the circumstances, the

challenge made to the impugned order by the Revenue

without any valid grounds that too after giving consent

for such remand is not maintainable. Moreover, no

prejudice would be caused to the Revenue on such

remand.

For the reasons aforesaid, no substantial question

of law arises for our consideration. Resultantly, the

appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

PMR