Madras High Court
The Commissioner Of Customs vs Shri.R.Natarajan on 5 August, 2021
C.M.A.Nos.2233 to 2238 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2021
CORAM :
THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.Nos.2233 to 2238 of 2021
The Commissioner of Customs,
Chennai-II Commissionerate,
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001. ... Appellant
in all appeals
Vs.
Shri.R.Natarajan
Partner of Santhif Cargo,
Functioning from Pentafour Services,
No.10, Jaffer Syrang Street,
III Floor, Parrys
Chennai – 600 001. ... Respondent
in C.M.A.No.2233 of 2021
M/s.Guru Kripa Impex,
Represented by its Prop. Goutham Sharma,
WZ-143A/4C,
II Floor, Gali.7,
New Mahavir Nagar,
New Delhi – 110 018. ... Respondent
in C.M.A.No.2234 of 2021
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C.M.A.Nos.2233 to 2238 of 2021
Shri.M.Alexander,
Partner of Santhif Cargo,
Functioning from Pentafour Services,
No.10, Jaffer Syrang Street,
III Floor, Parrys
Chennai – 600 001. ... Respondent
in C.M.A.No.2235 of 2021
M/s.Ganesh Shipping Agency,
No.9, Narayana Street, II Floor,
Periampet, Chennai – 600 00. ... Respondent
in C.M.A.No.2236 of 2021
Shri.Goutham Sharma,
M/s.Guru Kripa Impex,
WZ-143A/4C,
II Floor, Gali.7,
New Mahavir Nagar,
New Delhi – 110 018. ... Respondent
in C.M.A.No.2237 of 2021
Shri.M.Arokiaraj,
Pentafour Services,
No.10, Jaffer Syrang Street,
III Floor, Parrys
Chennai – 600 001. ... Respondent
in C.M.A.No.2238 of 2021
Prayer : Civil Miscellaneous Appeals in C.M.A.Nos.2233 to 2238 of 2021
filed under Section 130 of Customs Act, 1962, to set aside the Final Order
Nos.42155, 42153, 42156, 42157, 42158, 42154 of 2017, respectively, dated
19.09.2017, passed by the CESTAT, South Zonal Bench, Chennai.
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C.M.A.Nos.2233 to 2238 of 2021
For Appellant : Mr.A.P.Srinivas
Senior Standing Counsel
in all appeals
For Respondent : Mr.B.Sathish Sundar
in all appeals
COMMON JUDGMENT
(Judgment was delivered by T.S. SIVAGNANAM, J.)
These appeals filed by the Revenue are directed against the common
Final Order passed by the Customs, Exercise & Service Tax Appellate
Tribunal, Chennai, in Final Order No.42153-42158/2017, dated 19.09.2017.
2.The Revenue has raised the following substantial questions of law
for consideration:
“1.When jurisdictional High Court judgments are
available upholding the competency of the DRI to issue show
cause notice under Sec.28 of the Customs Act, 1962, whether
the CESTAT is correct in remanding the appeal?
2.Whether Tribunal is empowered to remand the case
without deciding the issues raised therein on the ground that
jurisdiction of the officer to issue show cause notice is under
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C.M.A.Nos.2233 to 2238 of 2021
dispute?”
3.We have perused the common final order passed by the Tribunal and
we find that the Tribunal has taken note of the decision of the Hon'ble
Division Bench of Delhi High Court in Mangali Impex v. Union of India
reported in (2016) 335 ELT 605 Del, wherein, it was held that the officers of
the Directorate of Revenue Intelligence (“DRI” for brevity) are not proper
officers of Customs, Exercise & Service Tax Department and therefore, they
cannot issue show cause notice or adjudicate any proceedings. The Tribunal
has also noted that the decision in the case of Mangali Impex has been stayed
by the Hon'ble Supreme Court as reported in 2016 (339) ELT A 49(SC).
Further, the Tribunal referred to the decision of the Hon'ble Delhi High
Court in BSNL v. Union of India [Writ Petition No.C/4438/2017], wherein,
the Hon'ble Delhi High Court permitted the petitioner therein to review the
challenge depending on the outcome of the appeals filed by the Government
of India in the Hon'ble Supreme Court against the judgment in the case of
Mangali Impex, and following the same, the Tribunal has allowed the
appeals filed by the assessee and remanded the matter back to the
Commissioner of Customs.
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C.M.A.Nos.2233 to 2238 of 2021
4.In our considered view, no useful purpose would be served by
remanding the matter, as the Commissioner of Customs has already
adjudicated the issue and without deciding the merits of the matter, the
appeals should not have been allowed. An order of remand should be
unconditional or qualified. If it is an unconditional order of remand, that
would mean that the reasons assigned by the adjudicating authority, namely,
the Commissioner of Customs, Chennai, are incorrect, and the Tribunal was
duty bound to record such finding and then set aside the order, and if it is
satisfied that a fresh opportunity needs to be given either to the assessee or to
the Revenue, then, an order of remand has to be passed. Time and again, the
Hon'ble Supreme Court has observed that the order of remand should not be
mechanically passed, as it would cause great prejudice not only to the
assessee but also to the Revenue. Unless and until the appellate forum is
fully satisfied that it cannot adjudicate the issue sans documents, order of
remand should not be passed. In the case on hand, the Tribunal is the last
fact finding authority in the hierarchy of authorities and it is open to the
Tribunal to directly receive the documents subject to reasons being recorded.
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C.M.A.Nos.2233 to 2238 of 2021
Therefore, without reasons being recorded, the appeals should not have been
allowed and remanded to the adjudicating authority and also parallelly status
quo being ordered to be maintained.
5.That apart, another important factor which needs to be taken note of
is the recent decision of the Hon'ble Supreme Court in M/s.Canon India
Private Limited v. Commissioner of Customs [Civil Appeal No.1827 of
2018 dated 09.03.2021] and the Revenue would contend that the said
decision would in no manner assist the case of the assessee, whereas, the
assessee would contend that the Hon'ble Supreme Court in M/s.Canon India
Private Limited has finally concluded that, officers of DRI are not proper
officers of Customs. We are informed that the Revenue has filed a Review
Petition in Civil Appeal No.1827 of 2018 to review the decision in
M/s.Canon India Private Limited and the same is stated to be pending before
the Hon'ble Supreme Court. This is one more reason why the matter should
be heard and decided by the Tribunal and await the decision in Mangali
Impex. Therefore, we are satisfied that the order impugned requires to be set
aside.
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C.M.A.Nos.2233 to 2238 of 2021
6.The appeals are allowed and the impugned common Final Order
passed by the Tribunal, dated 19.09.2017, is set aside and the appeals are
restored to the file of the Tribunal and the order of status quo granted by the
Tribunal shall continue to remain in force, and the ultimate decision in the
appeals shall abide by the decision to be taken by the Hon'ble Supreme Court
in the appeals filed by the Revenue against the judgment of the Hon'ble
Delhi High Court in the case of Mangali Impex. No costs.
(T.S.S., J.) (S.S.K., J.)
05.08.2021
(2/2)
mkn
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
The Commissioner of Customs,
Chennai-II Commissionerate,
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001.
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C.M.A.Nos.2233 to 2238 of 2021
T.S. SIVAGNANAM, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
mkn
C.M.A.Nos.2233 to 2238 of 2021
05.08.2021
(2/2)
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