Deptt. to adjudicate SCNS not issued by prior officers prior to 08.04.2011 in light of SC judgment

Deptt. to adjudicate SCNS no issued by proper officers (DRI, DGCEI, SIIB, etc) pertaining to demand prior to 08.04.2011 in the light of SC Stay order

F.No.276/104/2016-CX.8A (Pt.)
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Indirect taxes & Customs)
Legal Cell
*****

Wing 5 ‘C’ HUDCO-VISHALA Building
Bhikaji Cama Place, R.K. Puram
New Delhi, the 03rd September’2019.

Instruction

To,
1. All Principal Chief Commissioners/ Chief Commissioners of Central Tax & Customs
2. All Principal Director Generals/ Director Generals of Central Tax & Customs
3. <webmaster.cbec@icegate.gov.in>

Sir/Madam,

Sub: Adjudication of Show Cause Notices issued by DRI, DGCEI, SIIB, Preventive etc in light of the judgment in the case of M/s Mangali Impex -reg.

References have been received in the Board regarding the adjudication of cases wherein the Show Cause notices issued by DRI, DGCEI, SIIB, Preventive etc. pertaining to the duty demand prior to 08.04.2011 were kept in Call book, in light of the order dated 03.05.2016 of the Hon’ble Delhi High Court in the case of M/s Mangali Impex.

2. In this regard, the Department has filed SLP (C) No. 20453/2016 (now Civil
Appeal No. 6142/2019) and vide order dated 01.08.2016, Hon’ble Supreme Court granted stay on the order dated 03.05.2016 of Hon’ble Delhi High Court. Accordingly, in light of the opinion of Ld. Solicitor General of India that there is no bar on the adjudication of such cases, Board vide Instruction of even no. dated 03.01.2017 (copy available on CBIC website) directed the field formations to adjudicate the cases, which were kept in the
Callbook, in accordance with law. Further, Member (Customs) vide D.O.F. No. 437/143/2009-CusIV-pt.II dated 06.01.21017 directed the field formations to draw up an action plan for adjudications of these cases in a time bound manner.

3. Accordingly, it is reiterated that the earlier Board Instruction of even no. dated 03.01.2017 may be scrupulously followed, and the adjudication proceedings may be completed expeditiously, in accordance with law.

4. The contents of this instruction may be brought to the notice of field formations under your jurisdiction.

Yours faithfully,

(Anish Gupta)
OSD (Legal)
011-26162152

Copy to:
Joint Secretary (Customs), CBIC, North Block, New Delhi

Authors Note:
The Delhi High Court had held that the Department cannot seek to rely on Section 28(11) of the Customs Act, 1962 to validate the SCN issued by the Assistant Commissioner of Customs, SIIB to the Petitioner on 31st October 2003. The Court had held that Section 28 (11) of the Act cannot validate SCNs or proceedings pursuant thereto in relation to non-levy, short-levy or erroneous refund for a period prior to 8th April 2011 if such SCNs have been issued or proceedings conducted by officers of the Customs, DRI or DGCEI or by the SIIB, who are not ‘proper officers’ within the meaning of Section 2 (34) of the Act.

In that view of the matter, the High Court quashed the SCN issued and all proceedings pursuant thereto. 

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