M/S SAP INDIA PRIVATE LIMITED v. COMMISSIONER OF CUSTOMS (IMPORT) NEW CUSTOMS HOUSE NEAR IGI AIRPORT NEW DELHI

1. This hearing has been done through hybrid mode. CM APPL. 58588/2025 (for exemption)

2. Allowed, subject to all just exceptions. The application is disposed of. CM APPL. 58587/2025 (for delay)

3. This is an application seeking condonation of delay in filing the appeal challenging the impugned order of Customs Excise & Service Tax Appellate Tribunal (hereinafter ‘CESTAT’).

4. The reasons given in the application have been perused by the Court. Similar cases have already been considered, and delay has been condoned in the same. Accordingly, the delay of 2795 days in filing the present appeal is condoned.

5. The application is disposed of.

6. This appeal has been filed by the Appellant under Section 130 of the Customs Act, 1962, challenging the impugned order passed by Customs Excise and Service Tax Appellate Tribunal (hereinafter ‘CESTAT’) dated 17th July 2017 by which the CESTAT had remanded the matters to the Adjudicating Authority to await the decision in Union of India & Ors. vs. Mangli Impex Limited, Special Leave Petition (C) No. 2045[3] of 2016.

7. Similar appeals have already been considered by this Court in a number of matters. The decision on ‘proper officer’ has now been rendered by the Supreme Court in Canon India (P) Ltd. v. Commr. of Customs, (2021) 18 SCC 563, (hereinafter, ‘Canon-I’) wherein it was held that the Directorate of Revenue Intelligence (hereinafter, ‘DRI’) officials are not ‘proper officers’ under Section 28 of the Customs Act, 1962. Thereafter, a review against Canon- I was considered by the Supreme Court and the decision was passed in Review Petition No. 400 of 2021 titled Commissioner of Customs vs. M/s. Canon India Pvt. Ltd. (hereinafter, ‘Canon-II’). In Canon-II, it has been categorically held that the DRI officials would be ‘proper officers’ for purposes of Section 28 of the Customs Act, 1962. The relevant portion of the judgment in Canon- II reads as under:

officers, on the ground of want of jurisdiction for not being the proper officer, which remain pending before various forums, shall now be dealt with in the following manner: a. Where the show cause notices issued under Section 28 of the Act, 1962 have been challenged before the High Courts directly by way of a writ petition, the respective High Court shall dispose of such writ petitions in accordance with the observations made in this judgment and restore such notices for adjudication by the proper officer under Section 28. b. Where the writ petitions have been disposed of by the respective High Court and appeals have been preferred against such orders which are pending before this Court, they shall be disposed of in accordance with this decision and the show cause notices impugned therein shall be restored for adjudication by the proper officer under Section 28. c. Where the orders-in-original passed by the adjudicating authority under Section 28 have been challenged before the High Courts on the ground of maintainability due to lack of jurisdiction of the proper officer to issue show cause notices, the respective High Court shall grant eight weeks’ time to the respective assessee to prefer appropriate appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT). d. Where the writ petitions have been disposed of by the High Court and appeals have been preferred against them which are pending before this Court, they shall be disposed of in accordance with this decision and this Court shall grant eight weeks’ time to the respective assessee to prefer appropriate appeals before the CESTAT. e. Where the orders of CESTAT have been challenged before this Court or the respective High Court on the ground of maintainability due to lack of jurisdiction of the proper officer to issue show cause notices, this Court or the respective High Court shall dispose of such appeals or writ petitions in accordance with the ruling in this judgment and restore such notices to the CESTAT for hearing the matter on merits. f. Where appeals against the orders-inoriginal involving issues pertaining to the jurisdiction of the proper officer to issue show cause notices under Section 28 are pending before the CESTAT, they shall now be decided in accordance with the observations made in this decision.”

8. In view thereof, the question of proper officer no longer remains to be adjudicated. Accordingly, the appeal would have to be heard by the CESTAT on merits.

9. Such a course of action has been adopted by this Court in several other appeals, including in Commissioner of Customs vs. Sanjay Sachdeva (CUSAA 173/2022), Commissioner of Customs vs. Rohit Kumar Chartered Engineer, (CUSAA 175/2022), Commissioner of Customs vs. Do Throng Hieu and Other, (CUSAA 176/2022) and various other appeals.

10. Accordingly, this appeal is allowed. The impugned order is aside. The respective appeal listed below is restored to their original positions before CESTAT.