Madras High Court
The Commissioner Of Customs vs Shri Sanket Praful Tolia on 4 June, 2021
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
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https://www.mhc.tn.gov.in/judis/
C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
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
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C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
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
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C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
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
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C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
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
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C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
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
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https://www.mhc.tn.gov.in/judis/
C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
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.
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https://www.mhc.tn.gov.in/judis/
C.M.A.(MD) Nos.433, 434, 435, 436, 437,
439, 440, 441, 442, 443, 444 & 445 of
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
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https://www.mhc.tn.gov.in/judis/
