2022 (11) TMI 871 - HC - Customs
Maintainability of petition - availability of alternate remedy - Violation of principles of judicial discipline and doctrine of stare decisis - Classification of imported goods - Glucometer - whether the Glucometer should get classified under item 9018 or item 9027, which has already been considered by CESTAT? - HELD THAT:- As the Tribunal has already expressed its views in an identical matter and has classified the Glucometer under 9027, an Appeal to CESTAT against impugned order would be a mere idle formality.
Moreover, with this background, Petitioner will also have to make compliance with an onerous precondition of mandatory pre-deposit. When the order is ex facie erroneous and patently in violation of principles of judicial discipline and doctrine of stare decisis, this is a fit case to exercise our jurisdiction under Article 226 of the Constitution of India. Moreover, there are no disputed facts and the only issue to be considered is whether the Glucometer should get classified under item 9018 or item 9027, which has already been considered by CESTAT. Since this is already concluded by CESTAT, on this ground alone, the impugned order requires to be quashed and set aside.
First of all this conclusion is erroneous particularly in view of findings of the CESTAT in M/S BAYER PHARMACEUTICALS PVT LTD VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [2015 (11) TMI 943 - CESTAT MUMBAI]. Moreover, the said notification will apply only where goods are classified under item 9018. The notification would not apply when goods are classified under 9027. Therefore, the attempt of giving reasons or explaining how the notification is applicable only to those goods classified under item 9018 could be applicable to goods under item 9027 is not acceptable. Non considering and following Bayer (supra) itself is a reason for us to interfere under Article 226 of the Constitution of India.
We entirely agree with the conclusions/findings of CESTAT in Bayer [2015 (11) TMI 943 - CESTAT MUMBAI] since the goods are identical. - Demand set aside.