Commissioner of Customs v. Indian Metal and Ferro Alloys Ltd.

1. Mr. Rahul Satija, Advocate states that he has already entered appearance on behalf of the respondents in the present appeals but seeks further time to file his power of attorney. He requests that orders on the present appeals may be deferred as the judgment in the case of Mangli Tmpex vs. Unioii ofIndia reported as 2016(335)ELT 605(Del.) has been challenged and is under consideration of the Supreme Court in a pending appeal. In supportofthe said submission,he relies on para[9].[3] ofthe Master Circular dated 10.3.2017 titled "Show Cause Notice, Adjudication and Recovery" that deals with "Call-Book Cases", i.e. cases that "cannot be adjudicated due to certain specified reasons and adjudication is to be kept iri abeyance", Learned couiisel also refers to the order dated 25.05.2017, passed by a co-ordinate Bench in W.P.(C)No.4438/2017;entitled BSNL vs. UOI & Ors. to urge that this Court should await the outcome of the appeal filed by the UOI before the Supreme Court agairist thejudgment in MangliImnex(supra).

2. On the other hand, Mr. Harpreet Singh, learned counsel for the appellants submits that subsequent to the order dated 25.05,2017 in the captioned petition,several orders have been passed by co-ordinate Benches including order- dated 20.11.2017 in Vipul Overseas Pvt. Ltd. vs. Commissiorier of Customs reported as 2018 (359') ELT 646 (Del.), order dated 13.02.2017 in CUS.AA 67/2017 in Forech India Pvt. Ltd. vs. Commissioner ofCustorns.Inland Container DepotTuglakabad,New Delhi CUSAA 185/2019 <6 connected matters Page3of[7] and order dated 17.07.2018 in CUS.AA 99/2018 entitled Commissioner of Customs vs. Gurbinder Pal Singh wherein co-ordinate Benches have adopted a uniform approach of restoring the appeals filed before the CESTAT for a fresh adjudication on merits, uninfluenced by the judgment in the case of Mangli Imnex Isunral. He also points out that the presiding Judge ofthe Division Bench that had passed the order in BSNL(supra)has also subsequently followed the view expressed by the co-ordinate Benches in Vipul Overseas (supra) and Forech India Pvt. Ltd. (supra), by passing orders on similar lines in CUS.AA 192/2019 in Commissioner of Customs (Imports)vs. M/s. Mondes Overseas, decided on 28:05.2019 and in several other appeals.

3. We are inclined to agree with the submission made by learned counsel for the appellantthat in the interest ofconsistency and to avoid uncertainty, a uniforrn approach ought to be adopted and similar orders ought to be passed in the present appeals as have been passed in Vipul Overseas(supra), Forech India Pvt;Ltd. (supra)and Mondeo Overseas(supra). ^ 4. Forpurposesofreadyreference,theorderdated20.11.2017passedin Vipul Overseas(supra)isreproduced herein below:-. - "On the lastdate ofhearing, we hadpassedthefollowing order in the aforesaidappeals:, "2. LearnedcounselJor the appellantssubmits that the grounds of appeal raised before the Tribunal did not relate to rate of duty and hence, these, writpetitions CUSAA 185/2019& connected matters Page4of? would be maintainable before this Court.

3. LearnedCounselfor the appellants-submits thatthe matter should be examined by the Tribunal on. merits including the contention ofthe appellants thatan officer ofthe Directorate ofRevenueIntelligence could nothave issued the show cause notice. It is submitted that the Tribunal had the jurisdiction to decide the aforesaid ' aspect uninfluenced by the judgment of this court in Mangli Ifnpex Limited v. Union ofIndia 2016(335) ELT605(Del.), operation ofwhich has been stayed by theSupreme Court. O Learned counselfor the respondents submits that he wants to obtain instructions before he makes any submission before the court.

5. Realistthese appeals on 20th November,2017".

2. Learned counsel for the respondents has obtained instructions and states that they have no objection, if the remand order is set aside and Tribunal is requested to decide the issue oh merits without taking into consideration the decision ofthe DelhiHigh Court in MangliImpex Limited v. Union ofIndia m6(335)ELT605(Dei),which isstayed by theSupreme Court. ^ ^ copy ofthe said letter has been shown to the learned counselforthe appellants, whostates thathe does nothaveany objection.

4. In view of statements made, we frame the following substantialquestion oflaw: Whether the Customs, Excise and Service Tax Appellate Tribunal('CESTAT)wasjustified and correct in law in., passingan orderofremandto theoriginaladjudicating CUSAA185/2019&connectedmatters Page5of[7] h[9] authority to first decide the issue ofjurisdiction, after decision ofthe Supreme Court in Civil Appealpreferred against the^ decision of Delhi High Court in Mangli Impex Limited v. Union ofIndia 2016(335)ELT 605 (Del)?

5. The undisputed position is that two show cause notices dated 10th April, 2008 were issued to the appellants by the Directorate of Revenue Intelligence (DRI'for short) and original adjudication order waspassedon 14th October, 2014. Thefinal order was challenged before the CESTAT, who have vide impugned order dated 14th July, 2017, remanded the matter back to the Adjudicating Authority to awdit'the decision ofthe Supreme Court in MangliImpex Limited (supra). The appellants and respondents have assertively highlighted that the original order waspassed after more than 6 V[2] years. Thus, remand to the originaladjudicating authority atthis stage, they submit, would causeprejudice and harassmentto the appellants and respondents. The submission is that the contentions ofthe appellants should be decided on merits by the CESTAT including imposition ofpenalty and right ofthe DRI to issue show,cause notice^ The appellants accept that the adjudication would be uninfluenced by thejudgment in the case ofMangli ImpexLimited(supra), operation ofwhich has been stayed by the Supreme Court. In other words, the Tribunal would independently apply its mindon the question of jurisdiction.

6. In view oftjhe aforesaidposition, the substantial question oflaw is answered infavour ofthe appellants and the order of theTribunaldated6th July,2017is set aside. The Tribunal will decide the appeals on merits, including the question of jurisdiction of the officers of DRI to issue the show cause notice, without being influenced by the decision ofthe Delhi High Court in the case of Mangli Impex Limited (supra), which has been stayed by theSupreme Court.

7. We clhrify thatwe have notexpressedanyopinion on the merits ofthese appeals or.on the procedure that the Tribunal shouldadopt.

8. TheseJappeals are disposed ofin the above terms. There would be no order as to costs."

5. Following the above order, the present appeals are allowed. The appeals preferred before the Customs Excise and Service Tax Appellate Tribunal (in short 'CESTAT') are restored for a fresh consideration.

CESTAT is directed to independently adjudicate upon the question of jurisdiction and decide the said appeals on merits includingThe aspect of imposition ofpenalty,ifany,uninfluenced bythejudgmentin MangliImpex (supra). The Tribunal is directed to give a prior notice to the parties before proceeding to hearthe appealson merits.

6. The appeals are allowed on the above terms along with the pending applications.

AUGUST 27,2019 ap/ajk HIMAKOHLI,J SHA MENON,J AS CUSAA 185/2019& connected matters Page 7of[7]