2018 (7) TMI 627 – MADHYA PRADESH HIGH COURT – 2018 (362) E.L.T. 385 (M. P.) – Competency of officers of Directorate of Revenue Intelligence to adjudicate the SCN which were kept in the call book – Validity of Circular No.276/104/2016-CX.8A dated 3/01/2017 issued by the Central Board of Excise & Customs – SCN issued by DRI – Held that:- For every issue, some or the other case would be pending in High Court or the Hon'ble Supreme Court. The same cannot cause fetter in exercise of quasi judicial or judicial functions of the authorities or lower courts. If merely for this reason the adjudication is kept in call book, there would be grave injustice and the same would be not in public interest. The matters can be kept in call book, if there is specific direction for the same issued in that case by the Superior Courts.
–
The apprehension of the petitioner that the adjudicating authority would pass a final order without following the said mandatory, statutory and legal requirements and t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ar No.276/104/2016-CX.8A dated 3/01/2017 issued by the Central Board of Excise & Customs directing that the show cause notices, adjudication of which was kept in call book pursuant to the earlier Circulars dated 29/06/2016 and 28/12/2016 shall be taken out and be adjudicated in accordance with law. 2. According to the writ petitioner, the earlier Circulars of 2016 which thus stand withdrawn, were on the issue of competency of officers of Directorate of Revenue Intelligence, covered by judgment of Delhi High Court in Mangali Impex Ltd. v. Union of India & Others [2016 (335) ELT 605]. The Department's SLP No.20453/2016 is pending before the Apex Court, wherein in while issuing notice, operation of the said judgment is stayed on 1.08.2016. The petitioner submits that even if a judgment is stayed, the stay shall operate qua the parties thereto, and not qua all others. Thus, irrespective of the stay, the judgment of Delhi High Court is still in force qua all others and thus the
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ate of revenue Intelligence is pending for final order before the Apex Court, to avoid adjudication, the petitioner has challenged the Circular dated 3/01/2017. For every issue, some or the other case would be pending in High Court or the Hon'ble Supreme Court. The same cannot cause fetter in exercise of quasi judicial or judicial functions of the authorities or lower courts. If merely for this reason the adjudication is kept in call book, there would be grave injustice and the same would be not in public interest. The matters can be kept in call book, if there is specific direction for the same issued in that case by the Superior Courts. 5. It is not the case of the petitioner that the SLP in Mangilal Impex Ltd.(supra) is already listed for final hearing and, therefore, the adjudicating authority shall await the decisions of the Hon'ble Supreme Court. The Circular do not contain any infirmity. The Circular is binding upon the authorities and they cannot act to the contrary as
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
rs, have been placed in call book by various adjudicating authorities all over India is not supported by any favourable data. In any event, the show cause notices which were kept in the Call Book, in view of the said Board instructions will have to be taken out of the Call Book immediately and the adjudication of such show cause notices are to be proceeded in accordance with law. It would cause grave harm to the petitioner for noncompliance of instructions issued by the Board. Therefore, if adjudicating authority is proceeding for adjudication, we find no error in the same and thus on the contrary the adjudicating authority is bound to do the same in view of the said binding circular. Therefore it is clear that so far as the department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time. The challenge of the circular, therefore, fails for lack of any merit. 7. We also find no basis on the ap
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
oducts Pvt. Ltd. v. Commissioner [2012(281) E.L.T.193(Del.), Basudev Garg v. Commissioner [2013(294) E.L.T. 353(Del.), CCE, Meerut-1 v. Parmarth Iron Pvt. Ltd. [2010 (260) E.L.T. 514 (All.) and Swiber Offshore Constructions Pvt. Ltd.(Supra) on the applicability of the provisions of Section 138 B of Customs Act, 1962/Section 9D of Central Excise Act, 1944 and also on the order of examination as per the judgment of the Apex Court in the case of Sukhwant Singh v. State of Punujab(supra). 8. The apprehension of the petitioner that the adjudicating authority would pass a final order without following the said mandatory, statutory and legal requirements and the petitioner would then be forced to hardship of payment of pre-deposit which is pre-requisite for availing appellate remedies, is also unfounded. Had the petitioner prima facie shown any material for such apprehension,we would have issued notice to ensure compliance of statutory requirements or if the final order is passed by the Adjud
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =