CUSAA/58/2017 of SHRI. SURENDER GARG Vs COMMISSIONER OF CUSTOMS. & ORS.

$~3 & 4

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 20[th]November, 2017

+CUSAA 57/2017

VIPUL OVERSEAS PVT. LTD..... AppellantThrough :Mr. A.K. Prasad, Ms.Priyanka Goel,Advocates.Through :Mr. A.K. Prasad, Ms.Priyanka Goel,Advocates.

versus

COMMISSIONER OF CUSTOMS & ORS. ..... Respondents

Through :Mr. Sanjeev Narula, SSC for Customswith Mr.Abhshek Ghai, Advocate.with Mr.Abhshek Ghai, Advocate.

+CUSAA 58/2017

SHRI. SURENDER GARG..... AppellantThrough :Mr. A.K. Prasad, Ms.Priyanka Goel,Advocates.Through :Mr. A.K. Prasad, Ms.Priyanka Goel,Advocates.

versus

COMMISSIONER OF CUSTOMS. & ORS...... Respondents

Through :Mr. Sanjeev Narula, SSC for Customswith Mr.Abhshek Ghai, Advocate.with Mr.Abhshek Ghai, Advocate.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNAHON'BLE MS. JUSTICE PRATHIBA M. SINGH

SANJIV KHANNA, J.(ORAL)

On the last date of hearing, we had passed the following order in the

aforesaid appeals :

“2.Learned counsel for the appellants submits that thegrounds of appeal raised before the Tribunal did not relateto rate of duty and hence, these writ petitions would bemaintainable before this Court.

CUSAA Nos. 57/2017 & 58/2017

3.Learned counsel for the appellants submits that thematter should be examined by the Tribunal on meritsincluding the contention of the appellants that an officer ofthe Directorate of Revenue Intelligence could not haveissued the show cause notice. It is submitted that theTribunal had the jurisdiction to decide the aforesaidaspect uninfluenced by the judgment of this court inMangli Impex Limited v. Union of India 2016 (335) ELT605 (Del.), operation of which has been stayed by theSupreme Court.

4.Learned counsel for the respondents submits that hewantstoobtaininstructionsbeforehemakesanysubmission before the court.

5.Re-list these appeals on 20[th]November, 2017”.

2.Learned counsel for the respondents has obtained instructions andstates that they have no objection, if the remand order is set aside andTribunal is requested to decide the issue on merits without taking intoconsideration the decision of the Delhi High Court in Mangli Impex Limitedv. Union of India 2016 (335) ELT 605 (Del.), which is stayed by theSupreme Court.

3.A copy of the said letter has been shown to the learned counsel for theappellants, who states that he does not have any objection.

4.In view of statements made, we frame the following substantialquestion of law:

WhethertheCustoms,ExciseandServiceTaxAppellate Tribunal (‘CESTAT’) was justified andcorrect in law in passing an order of remand to the

CUSAA Nos. 57/2017 & 58/2017

original adjudicating authority to first decide the issueof jurisdiction, after decision of the Supreme Court inCivil Appeal preferred against the decision of DelhiHigh Court in Mangli Impex Limited v. Union ofIndia 2016 (335) ELT 605 (Del.)?

5.The undisputed position is that two show cause notices dated 10[th]April, 2008 were issued to the appellants by the Directorate of RevenueIntelligence (‘DRI’ for short) and original adjudication order was passed on14[th]October, 2014. The final order was challenged before the CESTAT,who have vide impugned order dated 14[th]July, 2017, remanded the matterback to the Adjudicating Authority to await the decision of the SupremeCourt in Mangli Impex Limited (supra). The appellants and respondentshave assertively highlighted that the original order was passed after morethan 6 ½ years. Thus, remand to the original adjudicating authority at thisstage, they submit, would cause prejudice and harassment to the appellantsand respondents. The submission is that the contentions of the appellantsshould be decided on merits by the CESTAT including imposition of penaltyand right of the DRI to issue show cause notice. The appellants accept thatthe adjudication would be uninfluenced by the judgment in the case ofMangli Impex Limited (supra), operation of which has been stayed by theSupreme Court. In other words, the Tribunal would independently apply itsmind on the question of jurisdiction.6.In view of the aforesaid position, the substantial question of law isanswered in favour of the appellants and the order of the Tribunal dated 6[th]July, 2017 is set aside. The Tribunal will decide the appeals on merits,including the question of jurisdiction of the officers of DRI to issue the showcause notice, without being influenced by the decision of the Delhi High

CUSAA Nos. 57/2017 & 58/2017

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Court in the case of Mangli Impex Limited (supra), which has been stayedby the Supreme Court.

7.We clarify that we have not expressed any opinion on the merits ofthese appeals or on the procedure that the Tribunal should adopt.

8.These appeals are disposed of in the above terms. There would be noorder as to costs.

SANJIV KHANNA, J.

NOVEMBER 20, 2017j

PRATHIBA M. SINGH, J.

CUSAA Nos. 57/2017 & 58/2017