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Divine Homes Infra Pvt. Ltd. and Others V/S CC, New Delhi


Company & Directors' Information:- K H HOMES PRIVATE LIMITED [Under Process of Striking Off] CIN = U45209TG2014PTC096357

Company & Directors' Information:- M K HOMES INDIA LIMITED [Active] CIN = U55101TZ2005PLC011612

Company & Directors' Information:- S G HOMES PRIVATE LIMITED [Active] CIN = U45400WB2007PTC116514

Company & Directors' Information:- N-HOMES PRIVATE LIMITED [Active] CIN = U45400UP2013PTC056395

Company & Directors' Information:- V. M. HOMES PRIVATE LIMITED [Active] CIN = U70102MH2010PTC205054

Company & Directors' Information:- V S P HOMES PRIVATE LIMITED [Active] CIN = U45209TG2013PTC086790

Company & Directors' Information:- D G HOMES PRIVATE LIMITED [Active] CIN = U45400DL2007PTC170366

Company & Directors' Information:- S K HOMES PRIVATE LIMITED [Active] CIN = U45400WB2010PTC148173

Company & Directors' Information:- P N HOMES PRIVATE LIMITED [Converted to LLP] CIN = U70101WB2006PTC110541

Company & Directors' Information:- S S HOMES PVT. LTD. [Active] CIN = U70101WB1994PTC064233

Company & Directors' Information:- DIVINE HOMES INFRA PRIVATE LIMITED [Active] CIN = U45400DL2009PTC189710

Company & Directors' Information:- K V R HOMES PRIVATE LIMITED [Strike Off] CIN = U45200KA2013PTC069802

Company & Directors' Information:- K S A HOMES PRIVATE LIMITED [Strike Off] CIN = U45201TN2008PTC067458

Company & Directors' Information:- R G HOMES PRIVATE LIMITED [Amalgamated] CIN = U70101WB2005PTC106481

Company & Directors' Information:- D J HOMES PRIVATE LIMITED [Strike Off] CIN = U45400MH2007PTC171863

Company & Directors' Information:- M L HOMES PRIVATE LIMITED [Strike Off] CIN = U45201TN2004PTC053141

Company & Directors' Information:- L. K. HOMES PRIVATE LIMITED [Strike Off] CIN = U45200TN2007PTC065798

Company & Directors' Information:- A & T HOMES PRIVATE LIMITED [Active] CIN = U45209TN2013PTC089558

Company & Directors' Information:- DIVINE HOMES PRIVATE LIMITED [Strike Off] CIN = U70101KL1995PTC008806

Company & Directors' Information:- R. D. HOMES PRIVATE LIMITED [Active] CIN = U45201OR2010PTC011621

Company & Directors' Information:- T V HOMES PRIVATE LIMITED [Strike Off] CIN = U70109TN2009PTC073562

Company & Directors' Information:- J. K. M. HOMES PVT. LTD. [Strike Off] CIN = U65921WB1995PTC069408

Company & Directors' Information:- D S D HOMES PRIVATE LIMITED [Active] CIN = U70109DL2013PTC251321

Company & Directors' Information:- K AND J HOMES PRIVATE LIMITED [Active] CIN = U70109KL2015PTC038666

Company & Directors' Information:- B V HOMES PRIVATE LIMITED [Active] CIN = U45200BR2020PTC046501

Company & Directors' Information:- P. S. HOMES PRIVATE LIMITED [Strike Off] CIN = U45201OR2008PTC009838

Company & Directors' Information:- J P HOMES PVT LTD [Active] CIN = U70101DL2001PTC111133

Company & Directors' Information:- S R R HOMES PRIVATE LIMITED [Strike Off] CIN = U70200KA2008PTC046495

Company & Directors' Information:- P N R HOMES PRIVATE LIMITED [Active] CIN = U45200KL2013PTC035725

Company & Directors' Information:- R J HOMES PRIVATE LIMITED [Active] CIN = U70109WB2011PTC168039

Company & Directors' Information:- R A HOMES PRIVATE LIMITED [Active] CIN = U45200MH2002PTC134922

Company & Directors' Information:- T & T HOMES PRIVATE LIMITED [Active] CIN = U45207MH2007PTC173785

Company & Directors' Information:- J HOMES PRIVATE LIMITED [Strike Off] CIN = U45200TZ2012PTC018247

Company & Directors' Information:- S J HOMES PRIVATE LIMITED [Active] CIN = U70109WB2011PTC167997

Company & Directors' Information:- R P HOMES PRIVATE LIMITED [Active] CIN = U45200BR2010PTC015240

Company & Directors' Information:- K K G HOMES PRIVATE LIMITED [Strike Off] CIN = U70101TN1988PTC016477

Company & Directors' Information:- G M HOMES PRIVATE LIMITED [Strike Off] CIN = U45203KA1996ULT020888

Company & Directors' Information:- D C S HOMES PRIVATE LIMITED [Active] CIN = U45202TN2007PTC064024

Company & Directors' Information:- M D HOMES PRIVATE LIMITED [Strike Off] CIN = U45200MH2002PTC138309

Company & Directors' Information:- R V HOMES INDIA PRIVATE LIMITED [Active] CIN = U45400TG2012PTC082955

Company & Directors' Information:- K M R INDIA HOMES PRIVATE LIMITED [Active] CIN = U45400TG2015PTC098346

Company & Directors' Information:- S K R HOMES PRIVATE LIMITED [Strike Off] CIN = U70102TG2010PTC071002

Company & Directors' Information:- A R M HOMES PRIVATE LIMITED [Strike Off] CIN = U28910UP2015PTC071525

Company & Directors' Information:- J S S HOMES PRIVATE LIMITED [Converted to LLP] CIN = U70102WB2014PTC201062

Company & Directors' Information:- J K P HOMES PRIVATE LIMITED [Active] CIN = U45204DL2013PTC260317

Company & Directors' Information:- R K HOMES PRIVATE LIMITED [Active] CIN = U70101DL2000PTC106011

Company & Directors' Information:- C T R HOMES PRIVATE LIMITED [Strike Off] CIN = U70200HR2012PTC046796

Company & Directors' Information:- M G HOMES PRIVATE LIMITED [Active] CIN = U45204HR2014PTC052239

Company & Directors' Information:- T K HOMES PRIVATE LIMITED [Active] CIN = U45300KA2014PTC073419

Company & Directors' Information:- K B C HOMES PRIVATE LIMITED [Active] CIN = U45200KL2011PTC029081

Company & Directors' Information:- O P HOMES PRIVATE LIMITED [Active] CIN = U70100KL2015PTC037933

Company & Directors' Information:- V V S HOMES PRIVATE LIMITED [Strike Off] CIN = U45200TG2004PTC043057

Company & Directors' Information:- V G HOMES P LTD [Strike Off] CIN = U45201TN1996PTC034484

    Customs Appeals Nos. 53533-53534/2015 (DB) (Arising out of Order-in-Original No. 3/KAM/Commr/2015 dated 16.01.2015 passed by the Commissioner of Customs (Preventive), New Customs House, New Delhi) and Final Orders Nos. 55891-55892/2017

    Decided On, 10 August 2017

    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi

    By, THE HONORABLE JUSTICE: DR. SATISH CHANDRA
    By, (PRESIDENT) AND THE HONORABLE JUSTICE: V. PADMANABHAN
    By, MEMBER

    For Petitioner: Priyadarshi Manish, Advocate And For Respondents: K. Poddar, DR



Judgment Text


1. The present appeals have been filed against the Order-in-Original No. 03/KAM/Commr/2015 dated 16.01.2015 passed by the Commissioner of Customs (Preventive), New Delhi.

2. Heard Shri Priyadarshi Manish, ld. Counsel for the appellant and Shri K. Poddar, ld. Departmental Representative for the Revenue.

3. During the course of arguments, both the counsels have agreed that in the instant case, notice was issued by the Commissioner (Preventive), who is not the competent authority as per ratio laid down by the Hon'ble High Court in the case of Mangli Impex Vs. Union of India: 2016 (335) ELT 605 (Delhi).

4. In this connection, we note that similar issues have been dealt with in various cases by the Tribunal recently. It is held that the matters have to be remanded back to the original authority for a decision after the legal issue is settled by the Hon'ble Supreme Court. The decision of the Tribunal in one such case vide Final Order No. 53941-53942 of 2017 dated 12/06/2017 is reproduced below:

"During the course of arguments, the appellant's counsel has raised the preliminary plea that the show cause notice in the instant case was issued by the Directorate of Revenue Intelligence (DRI). The Hon'ble High Court of Delhi in the case of Mangali Impex Ltd. Vs. UOI dated 03.05.2016 has observed that the DRI is not competent to issue the show cause notices. Hence, the request is being made to set aside the present proceedings where the notice was issued by the DRI.

2. On the other hand, learned Counsel for the Department has justified the notice issued by DRI and made a request to decide the matter on merit.

3. We have heard both the parties at length and gone through the material available on record.

4. From the record, it appears that the preliminary issue emerges in the present appeal is regarding the jurisdiction of the DRI Officers to issue the show cause notice under the Customs Act. The assessee-Appellant had taken a stand that in terms of the Hon'ble Apex Court decision in the case of Commissioner of Customs vs. Sayed Ali: 2011 (265) 17 (S.C.)], the DRI officers were not proper officers in terms of section 2(34) of the Customs Act, 1962.

5. It is also seen that after the declaration of law by the Hon'ble Supreme Court (Supra), the provisions of section 28 of the Customs Act, 1962 were amended with effect from 08.04.2011 vide Finance Act, 2011.

6. It is also noticed that in order to overcome the situation created by the judgment of Hon'ble Supreme Court in the case of Sayed Ali (supra), Notification No. 44/2011-Cus (NT), dated July 6, 2011 was issued by the CBEC, assigning the functions of the proper officer to various officers (including Additional Director General, DRI) mentioned in the notification, for the purposes of Section 28 of the Act. Thus, w.e.f. July 6, 2011, the Additional Director General, DRI was prospectively appointed as "proper officer? for the purpose of Section 28 of the Customs Act. Hence, from 06/07/2011 ADG-DRI has been empowered to issue demand notice under Section 28.

7. Subsequently, sub-Section (11) was inserted under Section 28 of the Customs (Amendment and Validation) Act, 2011 dated 16/09/2011, assigning the functions of proper officers to various DRI officers with retrospective effect.

8. Later on, i.e. for the period subsequent to the amendment, the matter i.e. the DRI officers having the proper jurisdiction to issue the SCN or not had came up before the Hon'ble Delhi High Court in the case of Mangali Impex Ltd. vs. Union of India [2016 (335) E.L.T. 605 (Del.)], and the High Court inter-alia, held that even the new inserted Section 28(11) does not empower either the officers of DRI or the DGCEI to issue the SCN for the period prior to 08/04/2011. Thus, it is seen that the said order of the Hon'ble Delhi High Court is in favour of the assessee and against the Revenue.

9. However, it is further noticed that the said issue was also the subject matter of Hon'ble Mumbai High Court in the case of Sunil Gupta vs. Union of India [2015 (315) E.L.T. 167 (Bom) as also of the Hon'ble High Court of Telangana and Andhra Pradesh in the case of Vuppalamritha Magnetic Components Ltd. vs. DRI (Zonal Unit), Chennai [2017 (345) E.L.T. 161 (AP)], taking a view contrary to the one taken by the Hon'ble Delhi High Court.

10. Being conflicting decisions of various High Courts (Supra), finally the matter reached to Hon'ble Supreme Court who on 07/10/2016 granted the stay of operation of the judgment passed by the High Court of Delhi. Thus the issue is sub-judice before the Hon'ble Supreme Court [2016-TIOL-173-SC-CUS/2016 (339) ELT A 49 (SC)].

11. It may be mentioned that recently, the Hon'ble High Court of Delhi in the case of BSNL Vs. UOI vide writ petition No. C/4438/2017 and CM No. 19387/2017 has dealt with the identical issue where the notice was also issued by DRI. The Hon'ble High Court of Delhi has considered the judgment in the case of Mangali Impex Ltd. Vs. UOI which is stayed by the Hon'ble Supreme Court reported as 2016 (339) E.L.T. A 49 (SC). Finally the Hon'ble High Court has granted liberty to the petitioner by observing that "petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of Mangali Impex Ltd."

12. By following the ratio laid down by the Hon'ble High Court of

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Delhi in the case of BSNL (Supra) as well as by considering totality of facts and circumstances, we set aside the impugned order and remand the matter to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon'ble Supreme Court decision in the case of Mangali Impex Ltd. and then on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision, the status quo will be maintained. 13. In the result, appeals filed by the assessee are allowed by way of remand". 5. Both the parties have agreed to it.
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