IMPORTANT POINT
The jurisdiction of the Commissioner of Customs (Preventive) for assessment and recovery of duty under the Customs Act, and the applicability of a specific case to the present case were the central legal points established in the judgment.

ORDER :

AVNEESH JHINGAN, J.

1. These review petitions are being decided by common order, as the facts and issue involved are similar. For convenience the facts from DB Civil Misc. Review Petition No.10/2019 are being taken.

2. Brief facts are that custom authorities on 20th April, 2011 issued a Show Cause Notice (for short ‘SCN’) to the respondent. The order in original was passed by the Commissioner of Customs on 31st January, 2012 ordering recovery of differential duty, confiscation of seized machines and imposing penalty.

3. Aggrieved of the order, the respondents preferred an appeal before the Commissioner Excise and Service Tax Appellate Tribunal (for short ‘CESTAT’). One of the issue involved was as to whether Commissioner of Customs (Preventive) or (DRI) was ‘proper officer’ for issuing SCN in case of escapement of custom duty. Various High Courts were having divergent views on the issue and the matter in the case of Mangali Impex Limited Vs. Union of India [2016 (335) ELT 605 (Delhi)] is pending before the Supreme Court and the operation of Delhi High Court order is stayed.

4. The Tribunal taking into account pendency of the issue before Supreme Court, set aside the impugned order on 19th July, 2017 and remanded the matter back to the original authority to decide the issue of jurisdiction at first instance, after the issue is decided by Supreme Court in Mangali Impex (supra) and then the merits of case. The status quo was ordered to be maintained for intervening period.

5. The petitioner - Commissioner of Customs (Preventive) filed appeal before this Court and framed two substantial questions of law reproduced below:

“1. Whether Commissioner of Customs (Preventive), who is jurisdictional Commissioner also for whole state of Rajasthan, is proper officer in view of Section 2(34) of the Customs Act, 1962 for assessment under Section 17 and Re-assessment/recovery of duty under Section 28 of the Customs Act, 1962?

2. Whether the case of M/s Mangali Impex vs. CCE is applicable in the present case?”

6. The appeals were dismissed on 01st August, 2018 relying on the decision of Karnataka High Court in the case of Deepak M.Ganeyan Vs. The Commissioner of Customs and Service Tax, Bangalore dated 04th July, 2018 holding that no substantial question of law arises. The operational part of the judgment of Karnataka High Court in the case of Deepak M.Ganeyan (supra) is reproduced as under:

“Having heard the learned counsel for the appellant, We are satisfied that no substantial question of law arises in the present case requiring our further consideration. The question of jurisdiction is obviously pending consideration before the Hon’ble Supreme Court of India and the law laid down by the Hon’ble Supreme Court of India is bound to be final and binding on all the Authorities and the Tribunal below. Therefore, since the present nature of the case as to which authority will have jurisdiction to decide the matter of the appellant and other persons mentioned in the show cause notice, will depend upon the Judgment of the Hon’ble Supreme Court, this matter need not be kept pending here on our Board and in our considered view no substantial question of law arises for consideration in this appeal. The proceedings before the concerned Authority who will be the ‘proper authority’ held so, by the Hon’ble Supreme Court will get seized of the matter and the contentions now raised before us can be raised before the said Authority.”

7. The review petition is filed on the ground that the question that decision of Mangali Impex Limited (supra) had no applicability was not decided.

8. Learned counsel for the respondents submits that rehearing is not the scope of review. He further submits that the matter has been remanded back to the original authority and before proceeding further, the issue of jurisdiction is to be decided first.

9. The scope of interference in review petition is limited. From perusal of order dated 01st August, 2018 passed by this Court it is ev