1. Ld. Advocate, Shri V.M. Doiphode, appeared on behalf of the appellant submits that the early hearing applications have been filed to take the matter out of turn along with the appeal No. C/42096/2017. He submitted that the SCN was issued by DRI and therefore the matter requires to be remanded to the adjudicating authority in view of the judgments passed by the Tribunal in various cases. He pointed out that out of 49 Bills of Entry under dispute predominantly all the Bills of Entry are prior to 08.04.2011. Ld. AR, Shri R. Subramaniyam, AC, concedes that SCN was issued by DRI.
2. Heard both sides and have gone through the records.
3. We thus note that the predominant part of the dispute is prior to 08.04.2011 and therefore going by the earlier decisions of the Tribunal remanding the matter, the entire issue will have to be similarly remanded, awaiting the judgment of the Hon'ble Apex Court, as considered in the decisions passed by the Tribunal in similar matters. The relevant portion of the decision in Final Order No. 42279/2017 dated 05.10.201(sic) in the case of M/s. Box Corrugators and Offset Printers Vs. CC, Chennai, involving similar issue is as under:-
3. From the record, it appears that the preliminary issue which emerges in the present appeal is regarding the jurisdiction of the DRI to issue the show-cause notice under the Customs Act. The assessee-Respondent has 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 (SC)], the DRI officers were not proper officers in terms of section 2(34) of the Customs Act, 1962.
4. 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.
5. 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.
6. Subsequently, sub-section 11 was inserted under section 28 of the Customs (Amendment and Validation) Act, 2011 dated 16.9.2011, assigning the functions of proper officers to various DRI officers with retrospective effect.
7. 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 vs. Union of India [2016 (335) ELT 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 or adjudicate for the period prior to 8.4.2011. 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.
8. 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) ELT 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) ELT 161 AP], taking a view contrary to the one taken by the Hon'ble Delhi High Court.
9. 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)].
10. 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 Mangli Impex Vs. UOI which is stayed by the Hon'ble Supreme Court reported as 2016 (339) ELT 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 Mangli Impex Ltd.
11. By following the ratio laid down by the Hon'ble High Court of 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 Mangli Impex and then on merits of the case but by providing an opportunity to the assessee of bei
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ng heard. Till the final decision, the status quo will be maintained. 12. The impugned order is set aside and both the appeals are allowed by way of remand to the adjudicating authority to decide the issue afresh after the judgment of the Hon'ble Supreme Court in the case of Mangli Impex (supra). 4. Following the same we set aside the impugned order, and remand the matter to the adjudicating authority to decide the issue afresh after the judgment of the Hon'ble Supreme Court in the case of Mangli Impex (supra). Both the early hearing applications are also disposed of.