Commissioner of Customs v. Nirmala Agarwal

1. The question urged by the appellant in this appeal is as under:- "Whether the Customs, Excise & Service Tax Appellate Tribunal (hereinafter 'CESTAT') wasjustified in remanding the matter for adjudication to the concerned official tofirst decide the issue ofjurisdiction after the appeal pending in the Supreme Court against the reported judgment in the case of Mangli Impex Limited vs. Union ofIndia, 2016(339)ELT605(Del.)is decided?"

2. Issue notice. Ms. Ria Chanda, Advocate appears on behalf of the respondent.

3. It is submitted, at the outset, by learned counsel for the appellant that in the identical circumstances, where a similar issue was sought to be urged,this Court had passed an order in a batch of appeals[Commissioner ofCustoms(General)vs. SAPIndia Pvt. Ltd., CUSAA 40/2018 and other connected matters decided on 02.04.2018]. 2019:DHC:7835-DB v\

4. The Court had then directed as follows:- "Accordingly, the impugned order challenged in these appeals, remanding the matter to the adjudicating authority to await thejudgment ofthe Supreme Court in the appeal preferred against the decision in Mangli Impex Limited vs. Union ofIndia 2016 (335) ELT 605 (Del)is set aside. The appeals preferred before the Tribunal are restored to their original position. The Tribunal would decide the appeals on merits including the question of jurisdiction ofthe officer ofthe Directorate ofRevenue Intelligence who had issuedshow cause notices. The said issue would be examined by the Tribunal without being influenced by the decision ofthe Delhi High Court in the case ofMangli Implex Limited (supra). We clarify that we have not expressed any opinion on merits of the appeals or on the procedure that the Tribunal should adoptandfollow. Question of law is accordingly answered. The appeals are disposed of in the aforesaid terms. There would be no order as to costs."

5. Following the above decision,the impugned order is hereby set aside and the matters are remitted to the CESTAT, which shall proceed to examine and decide the merits of the appeal. The respondent/assessee's right to contend that the show cause notice issued in this case were legally untenable, in view ofthe decision of this Court in MangliImpex(supra),are kept intact.In other words,the Tribunal may hear the parties on the merits ofthe case as well as with respect to the issue ofjurisdiction, ifnecessary,on account ofMangli Impex(supra)and record separate findings. The findings with respect to the lack ofjurisdiction, if any, based on the reasoning in Mangli Impex(supra)would be subject to final outcome ofthe proceedings in the Supreme Court. The Court, at the same time, like in the other J cases, expresses no opinion on the merits or procedure that the Tribunal should adopt and follow.

6. The Tribunal is direeted to issue reasonable notice to the assessee for hearing the appeal before it.

7. The appeal is partly allowed in the above terms.

S.RAVINDRA BHAT,J PRATISEK JALAN,J MARCH 27,2019 pkb