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Customs - Case Laws
Showing 21 to 40 of 162 Records
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2020 (2) TMI 1376 - KARNATAKA HIGH COURT
Cancellation of the petitioner’s advance licence - suspension of the IEC of the petitioner till the amount of customs duty plus interest claimed to be due is paid by the petitioner - HELD THAT:- Clause D of Hand Book of procedures in respect of para 2.4 of the Export and Import Policy 2002-2007 provides that even the fuel is included as an import under SION, it should not be taken into account while fixing the DEPB rate for such products against which fuel has been allowed as an input. The petitioner has imported fuel under the Advance Licence Scheme and even admittedly he has not imported any other raw material under that scheme. The petitioner has not availed any benefit under the Advance Licence Scheme. Once the petitioner performs export obligation of ₹ 30 crores on the cost of ₹ 2.10 crores which he has incurred for importing fuel, there is no obligation on the petitioner to pay any duty on the said fuel. The petitioner would be entitled to payment of duties under DEPB scheme which he has paid on the raw material used in the manufacture of final product. When admittedly, the petitioner has not imported any raw material other than the fuel under the Advance Licence Scheme, which is excluded as per the amended provision, the net result is the petitioner has not availed any benefit under the Advance Licence Scheme.
To avail the benefit of both Advance Licence Scheme and DEPB scheme, the petitioner has to perform the export obligation of ₹ 30 crores which he has fulfilled. The petitioner has purchased the raw material which has gone into use of manufacturing products and therefore, the petitioner is entitled for refund of the said duty paid. If the petitioner opts for duty Drawback Scheme the rate at which he is entitled to the duty drawback is 3% and under DEPB Scheme, he is entitled to 4%. The petitioner availed DEPB scheme which is favourable to him.
The Learned Single Judge has rightly held that the petitioner has not imported any raw material other than fuel under the Advance Licence Scheme which is excluded as per the amended provision - Appeal dismissed.
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2020 (2) TMI 1374 - DELHI HIGH COURT
Refund of demurrage charges - It is alleged by the petitioner that the demurrages were paid by the petitioner for no fault of the petitioner - whether the Court can direct the other respondents to pay/remit the demurrage charges? - HELD THAT:- A bare reading of the above makes it abundantly clear, that the Customs authorities cannot direct waiver of demurrage, which can only be done by the custodian (the CCI here). Moreover, merely because the Customs authority expends a reasonable time in dispensation of their sovereign functions of search, seizure and investigation, cannot lead to transference of liability to pay demurrage, to the Customs authorities.
Refund of excess Customs duty - HELD THAT:- We are not inclined to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India, when an alternative efficacious remedy for obtaining the refund claim is clearly prescribed in the statute. The petitioner cannot circumvent the statutory provisions by invoking the writ jurisdiction. Moreover, sub-section (3) of Section 27 of the Customs Act, 1962, clearly suggests that, the claim for refund must be made in accordance with sub-section (2) of Section 27 of the Customs Act, 1962. Hence, we are not inclined to exercise our writ jurisdiction regarding the petitioner’s claim for refund.
Petition dismissed.
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2020 (2) TMI 1364 - KARNATAKA HIGH COURT
Levy of Fiscal penalties - scheme of amalgamation sanctioned by the High Court of Bombay - HELD THAT:- The impugned order was passed on 25-5-2006 and the Scheme was sanctioned by BIFR on 3-6-2003. After the said Scheme became operational, the present appellant has not availed any remedy before the Authorities concerned under the Act to press for such waiver on merits. It is not even explained before the Court as to how the present appellant which stepped into the shoes of KMBL after its merger with it, can revive the cause of KMBL, after KMBL had withdrawn the challenge by withdrawal of the writ petition before the Division Bench of this Court without reserving any such liberty to reagitate the issue. Hence, the Learned Single Judge had dismissed the writ petition.
The appellant herein is unable to show any of its right being violated. Admittedly, KMBL has merged with the present appellant Company and the appellant Company is fastened with all the liabilities of KMBL including the fiscal penalty of ₹ 23,38,882/- imposed by the respondent No. 2. Admittedly, the same is imposed as KMBL was not in a position to meet its export obligations during the relevant period and there has been no Scheme of BIFR. waiving the said fiscal penalty.
Appeal dismissed.
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2020 (2) TMI 1362 - TELANGANA HIGH COURT
Revocation of Customs Broker License - forfeiture of part or whole of the security - imposition of penalty - It is the contention of the Department that the respondent had attended to customs work on behalf of one of the fraudulent exporters by name M/s. Shakthishka Exports and that the person who actually handled the export one Shri S. Uma Mahesh, a G-Card holder, was investigated by DRI - HELD THAT:- A reading of Regulation 18 of the Regulations indicates that the various options/punishments indicated therein are in the alternative and it is not mandatory for the Adjudicating Authority to revoke the licence of a Customs Broker for all infractions of the Regulations. The reason assigned by the Tribunal, i.e., that there was retraction of the statement made by the witness about subletting of the licence by the respondent to him stating that there was duress at the time when the statement was taken from him under Section 108 of the Act, and the officials of the Revenue had not confronted him with the bank transfers to establish that the licence was sublet by the respondent to the said Shri S. Uma Mahesh for consideration, and giving of benefit of doubt to the respondent, cannot be said to be perverse based on no evidence or contrary to law.
The Tribunal had rightly exercised its jurisdiction and the punishment imposed on the respondent is proportionate - Appeal dismissed.
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2020 (2) TMI 1361 - SUPREME COURT
Validity of Direction No. (iv) in Paragraph 47 of the impugned judgment - HELD THAT:- The objectionable material has been sent back to the original exporter in the United States. Thus, any alleged illegality in relation to the Customs Act, 1962 is not survived. The appellant appears to have shown their bona fides by ensuring the return of the offensive material.
Petition disposed off.
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2020 (2) TMI 1360 - CALCUTTA HIGH COURT
Smuggling - Gold Biscuits - Foreign Origin Goods - increase from 1166g to 1283g - confiscation - penalty - HELD THAT:- In the present case, the writ petitioner could not discharge the burden at all since it was impossible for the writ petitioner to suggest that the 1283g of gold recovered from him were attributable to the 1166g of gold that had been purchased by him from G. Seal & Co. some eighteen months back. Since there was no meaningful defence or any modicum of an explanation rendered by the writ petitioner as to how such writ petitioner came to be in possession of the gold that was found on his person, the order passed by the adjudicating authority and the order passed by the Tribunal cannot be faulted.
The order of the Tribunal assailed in the writ petition clearly recorded cogent grounds as to why the Tribunal disbelieved the writ petitioner and agreed with the order of adjudication. When findings of fact are rendered by competent bodies having jurisdiction to enquire into such facts, such factual findings are to be scarcely interfered with in exercise of the power of judicial review unless they appear to be perverse on the face of it.
An alternative argument has been attempted by the writ petitioner at this stage by referring to Section 125 of the Act of 1962. According to the writ petitioner, since it was not prohibited to import or export gold at the time when the seizure was effected from the writ petitioner, the adjudicating authority ought to have given the writ petitioner the option in terms of such provision before attempting to confiscate the goods - It does not appear that such a case was made out in the writ petition. No ground appears to have been taken in the writ petition that even if the adverse findings against the writ petitioner were not interfered with, the erroneous exercise of jurisdiction of confiscating the goods should be corrected. Since such a ground was not urged in the petition and it is not evident immediately as to whether the import or export of gold was prohibited in the year 1994, such ground has not been permitted to be canvassed by the writ petitioner at this stage.
The order of the Tribunal is restored. The appellant will take immediate appropriate steps against the writ petitioner in accordance with law and in terms of the order passed by the Tribunal. The writ petitioner will pay costs of the entire proceedings assessed at ₹ 1 lakh.
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2020 (2) TMI 1358 - CESTAT CHENNAI
EPCG Scheme - concessional rate of duty - vehicle has not been registered as tourist vehicle - recovery of duty forgone along with interest and penalty - HELD THAT:- It is brought out from the facts that the appellant has obtained registration under tourist category after the proceedings have been initiated - D.G.F.T. vide Circular dated 7-5-2008 has clarified that an importer/assessee could get the vehicles registered as tourist vehicle on or before 31-8-2008 and also if the EODC has not been issued within 30-6-2008. In the present case, the appellants have converted the registration to tourist vehicle much before issuance of EODC.
The second allegation is that the appellants have not earned foreign exchange exclusively by the use of the imported vehicle - HELD THAT:- In the case of Commissioner of Customs v. Hotel Excelsior Ltd. - 2016 (336) E.L.T. 595 (Del.), the Hon’ble High Court of Delhi held that as long as foreign exchange is earned by the hotel and the imported cars are used for hotel purpose, there would be no violation of any statutory requirement and it is not necessary that the foreign exchange has to be exclusively earned by using the vehicle. The E.P.C.G. license does not envisage that the amount collected by use of the imported car only has to be accounted towards fulfilment of export obligation.
In the present case, the appellant having been issued EODC on 12-6-2018 by the Jt. D.G.F.T., Trivandrum, the department cannot proceed to recover the duty forgone at the time of import, alleging non-fulfilment of conditions of EPCG license - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1357 - SC ORDER
Customs - Valuation - Alleged that undervaluation of good - No evidence provided in support of it - Charge of undervaluation not proved - HELD THAT:- Appeal dismissed.
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2020 (2) TMI 1341 - SC ORDER
Mr.J.Madanagopala Rao, learned Senior Panel Counsel appearing for the Director General of Foreign Trade and Secretary to Government of India, Ministry of Commerce and Industry, New Delhi, respondents 4 and 5, is directed to get appropriate instructions, on the averments made in the supporting affidavit and the prayer sought for.
HELD THAT:- SLP dismissed.
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2020 (2) TMI 1332 - BOMBAY HIGH COURT
Time sought to place on record the decisions in support of the contention that a contemplated show cause is a proceeding under the Section 110(5) of the Act - HELD THAT:- Stand over to 12 March 2020. To be listed at the bottom of the admission board.
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2020 (2) TMI 1318 - GUJARAT HIGH COURT
Validity of Detention Order - Smuggling of Gold - inordinate delay in passing the detention order - COFEPOSA Act - HELD THAT:- In the case on hand, the last and first prejudicial act recorded against the petitioner was in the month of January, 2014 to July, 2015, whereas the detention order is passed on 2.8.2019, which is after a period of four years. As such test of proximity is not mechanical test by merely counting number of months between the offending acts and the order of detention. But, when there is undue delay, than the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay occurred. No any reasonable explanation is provided by the detaining authority and in absence of reasonable explanation to show that the casual connection has been broken and it was till alive at the time of passing the detention order and then, it is a matter of fact that no any offence is registered against the petitioner either by Custom Department or State or Central Department about prejudicial activities.
The detention order stands vitiated on account of inordinate and unexplained delay in passing detention order - the petitioner shall be released forthwith, if he is not required in any other offence - petition allowed.
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2020 (2) TMI 1302 - TELANGANA HIGH COURT
Return of Bank Guarantee - finalization of provisional assessment - return sought on the ground that they did not initiate any retroactive check under Rule 7(c) of the Customs Tariff (Determination of Original of Goods under the Preferential Trade Agreement between Governments of Member States of the Association of South-East Asian Nations (ASEAN) and the Republic of India) Rules, 2009 notified on 31.12.2009 - HELD THAT:- Sri B. Narasimha Sarma, counsel appearing for respondents, states that there was no retroactive check in terms of Rule 7(c) of the Rules referred to above, and the R.T.I. information furnished to the petitioner on 06.11.2019 confirms the same - In view of the same, since the time limit of two (02) months as laid down in Rule 7(1) has expired, it is the duty of respondents to complete provisional assessment and also return the Bank Guarantees given by petitioner towards the exports made by him under the Bills of Entry dt.05.04.2019 and 01.04.2019.
The respondents are directed to release the Bank Guarantees furnished by petitioner within two (02) weeks from to-day since they anyway have a bond executed by petitioner; and the respondents shall also complete the provisional assessments in respect of the said Bills of Entry within a period of three (03) months from the date of receipt of copy of the order and communicate their decision to the petitioner - Petition allowed.
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2020 (2) TMI 1266 - MADRAS HIGH COURT
Amendment in shipping bills - Benefit under Merchandise Exports from India Scheme (MEIS) - petitioner inadvertently opted for “No” instead of “Yes” in the shipping bills - Corrections to be made is denied - HELD THAT:- This very issue as to whether the inadvertent error of not claiming benefit under the MEIS was fatal to the claim itself has come to be considered by learned single Judges of this Court in M/S. PASHA INTERNATIONAL VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS (EXPORTS) , THE JOINT DIRECTOR GENERAL OF FOREIGN TRADE [2019 (2) TMI 1187 - MADRAS HIGH COURT] where reliance was placed in the case of in the case of SAINT GOBAIN INDIA PVT. LTD. VERSUS UNION OF INDIA [2018 (11) TMI 536 - KERALA HIGH COURT], to hold that petitioner shall produce the said NOC before the 4th respondent and seek the benefits from the 4th respondent.
The error in not stating 'YES' to availment of the Scheme, such error, admittedly being inadvertent and Mr.Rajinish Pathiyil fairly does not dispute, this should not stand in the way of the consideration of entitlement on merits - the benefit of the Scheme would be available to the petitioner conditional upon verification and acceptance of such claim by the DGFT.
The impugned order rejecting the request for amendment is quashed - Petition allowed.
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2020 (2) TMI 1265 - ALLAHABAD HIGH COURT
Provisional release of goods - refund of IGST - lifting and removal of seizure - HELD THAT:- Although, it is evident that investigation is under process, the provisions of section 110 of the Customs Act, 1962, requires such investigation to be completed within a certain time frame. In case it relates to seizure of goods, documents and things, this time frame is initially for a period of six months which can be extended for a further period, not exceeding six months. As such, it is incumbent upon the concerned authorities to complete the investigation within the time frame as specified under section 110 of the Customs Act, 1962, in the facts and circumstances of the instant case.
The writ petition is disposed off with a direction upon the concerned respondent authorities to complete the investigation at an early date and ensure that the adjudicatory process is completed within a reasonable period of time, preferably within a period of six months from the date of communication of a photostat certified copy of this order.
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2020 (2) TMI 1264 - CALCUTTA HIGH COURT
Admissibility of application - issuance of show cause-cum-demand notice under Section 28 of the Customs Act, 1962 - guilty of suppression of material facts - case of the transferee is that they are not liable on the show cause notice - HELD THAT:- The tribunal in its impugned order dated 22nd December, 2015 ought to have followed that decision and rules in favour of the appellant but did not do so - This appeal under Section 130 of the Customs Act, 1962 is formally admitted.
Application disposed off.
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2020 (2) TMI 1263 - CESTAT CHENNAI
Condonation of delay of 764 days in filing the appeal - imposition of penalty for violation of Regulation 11(a) and (n) of CBLR, 2013 - HELD THAT:- It is settled position of law that merely because a decision which is in favour come to the notice, it cannot be a ground to seek condonation of delay. The appellant has failed to promptly avail the appeal remedy. Though law of limitation is not meant to destroy the right of parties, it cannot favour those who are sleeping. In the present case, the appellant has deliberately opted not to file appeal initially. Thereafter, this appeal is filed only on the advice given that the penalty can be set aside - there is no evidence to show that the livelihood of appellant is affected or his intention to expand business is interrupted.
The appellant has not been able to put forward sufficient cause to condone the delay. Further, the delay is more than two years - the application for condonation of delay is without merits - Appeal dismissed.
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2020 (2) TMI 1262 - CESTAT MUMBAI
Duty Free Import Authorisation (DFIA) scheme - seeking clearance of Cocoa Powder as against Maida, Atta and Flour - export of Biscuits - whether entries in SION or Exim Policy are to be understood in common man’s understanding/trade parlance or on the basis of Technical literature? - right to reopen the issue once the same was settled by the Apex Court - applicability of principles of ‘ejusdem generis’ or ‘Noscitur a socciis’ - extended period of limitation.
HELD THAT:- If Flour is placed along with Maida/Atta it cannot be taken to include ‘Cocoa Powder’ for the reason that ‘Cocoa Powder’ is a technically a Flour of beans. The issue is not so complicated and isolated that one requires to refer to Technical Literature to understand the terms. Technical Literature, being in its place, is no alternative to common sense and common man’s understanding or for that matter Trade parlance. It’s not the case of the importers that a common man on the street understands that ‘Cocoa Powder’ and ‘Atta/ Maida/Flour’ to be one and the same. No common man would go to a Flour mill to purchase ‘Cocoa Powder’. Therefore, no amount of painful elaboration based on too technical literature would replace common man’s understanding particularly when the issue concerns very mundane thing like ‘Atta/ Maida/Flour’ and certainly not Rocket Science.
Whether the principles of ‘ejusdem generis’ or ‘Noscitur a socciis’are applicable? - HELD THAT:- The word ‘Flour’ has been used in conjunction with ‘Atta/Maida’ and therefore, it would take the meaning of the words used along with it. One need not stretch the imagination and mental faculties to adduce the meaning of ‘Flour’ to ‘Cocoa powder’. In view of the same and going by common man’s understanding as enunciated by the various judgments of Higher Courts, we are inclined to accept the contention of the Revenue in this regard. We reject the contention of the importers that ‘Cocoa Powder’ can be imported as a replacement for ‘Atta/ Maida/Flour’.
DGFT, vide Public Notice No. 93 (RE-2010)/2009-14 dated 1/2/2012, permitted duty free import of 09gm of ‘Cocoa Powder’ as additive/ingredient against export of 1kg of Biscuits. This means that, prior to 1/12/2012, import of Cocoa Powder as an input item was not permissible against export of Biscuits under DFIAs.
In the present case, the Department has obtained required clarification from DGFT authorities who clarified that the importers are not allowed to import ‘Cocoa Powder’ under the DFIAs issued against the item description ‘Maida/Atta/Flour’.
Reopening of assessments - HELD THAT:- The appellants have argued that in most of the cases, department has assessed the import consignments on the basis of Tribunal’s decision in the case of S. Kushalchand& Co and therefore, it is not open for the customs to reopen the assessments. There is no estoppel in taxation matters and Revenue can set right a wrong that has crept in to the system in the past.
The benefit of Notifications No 40/2006-Cus dated 1/5/2006 and No 98/2009-Cus dated 11/9/2009is not automatic. It is subject to fulfilment of various conditions. Both notifications prescribe that the description, value and quantity of materials imported are covered by the said authorisation and the said authorisation is produced before the proper officers of customs at the time of clearance for debit”. Therefore, the Customs Officers who are administering the exemption are within their right to revise the practice despite a precedent.
‘Cocoa Powder’ cannot be equated with Flour/Atta/Maida and thus cannot be imported against the DFIAs issued against export of Biscuits before the issuance of Notification, No 93 (RE-2010)/2009-14 dated 1/2/2012 by DGFT, permitting import of 09gm of ‘Cocoa Powder’ as additive/ingredient against export of 1kg of Biscuits - the Notification is prospective only.
Extended period of limitation - HELD THAT:- No elements of suppression of fact, misstatement, misrepresentation etc which necessitate invocation of extended period are present in the circumstances of the cases on the part of various importers. Therefore, though it was open to the department to revise the assessments, the same should have been done in the normal period. It is not free for the department to invoke extended period - the appeals made by Revenue survive, though survive on merits, demands being hit by limitation; appeals are liable to be rejected on the issue of limitation.
Thus, the importers are not eligible to import ‘Cocoa Powder’ against the items ‘Flour/ Atta/Maida’. However, Revenue appeals are liable to be rejected on the grounds of limitation - appeal dismissed - decided against Revenue.
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2020 (2) TMI 1261 - CESTAT BANGALORE
Imposition of penalty u/s 114(i) and 114AA of the Customs Act, 1962 - export of prohibited items - case of appellant is that appellant was virtually ignorant of the said activities of the Marketing Manager and the appellant had not given any instruction to the marketing staff to export the prohibited items - HELD THAT:- In this case prohibited items are being exported but the same was intercepted. The only defense of the appellant was that export was done by the Marketing Manager without his knowledge and consent and he had not given any instruction to his Marketing staff to export the prohibited items. This defense does not inspire confidence. It is not convincing that the Marketing Manager has exported the prohibited goods without the knowledge of the appellant under whom the Marketing Manager is working.
The penalty imposed is also not very exorbitant - Appeal dismissed - decided against appellant.
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2020 (2) TMI 1260 - CESTAT MUMBAI
Levy of penalty and redemption fine - Acceptance of enhanced value then declared value of imported goods - crystal melamine - enhancement of value - confiscation - redemption fine - penalties - HELD THAT:- No evidence has been placed on record by the appellants herein that the value adopted does not represent that which the supplier offered goods for sale to India including to the original importer. The sole counter of Learned Counsel is that the negotiated price at which the goods were offered to the appellant is the sole consideration. The decision of the Hon’ble Supreme Court in M/S CHAUDHARY SHIP BREAKERS VERSUS COMMISSIONER OF CUSTOMS, AHMEDABAD [2010 (10) TMI 18 - SUPREME COURT] was rendered in the context of the agreement between the shipper and the importer being conditional upon the damage to the vessel before landing and, hence, cannot be disassociated from its acceptability as being at the time and place of importation.
There is no evidence on record that the negotiated price has been contrived to evade duties of customs. In the circumstances of being close to a distress sale, the absence of willing buyers for goods under investigation and there being no evidence of additional consideration, the finding of misdeclaration cannot be sustained. The reason for confiscation under Section 111(d), to be invoked for importer prohibited goods, has not been disclosed by either of the lower authorities and, on the basis of our findings supra, there is no scope for confiscation under Section 111(m) of Customs Act, 1962. Consequently, the imposition of redemption fine set aside and penalty under Section 112 of Customs Act, 1962 fails.
The concurrence obtained from the shipping agent in India has nothing to do with assessment under Section 17 or Section 18 of Customs Act, 1962. There is no allegation that the amendment to the line’ in the Import General Manifest has been obtained by submission of any fraudulent documents; indeed, there is no dispute on the propriety of filing a bill of entry by the appellant-firm. There is, thus, no scope for invoking Section 114AA of Customs Act, 1962.
The impugned order only to the extent of enhancement of value upheld - other part set aside - appeal allowed in part.
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2020 (2) TMI 1214 - SUPREME COURT
Application to the High Court, any question of law arising from order of the Tribunal - HELD THAT:- There is nothing in the text of Section 130A which implies that the High Court is mandatorily required to call for a statement from the Tribunal in every case, where a reference is made. This is so because of the language of Sub-Section 4 which opens with an ‘if’.
A reading of Section 130A (1) & (4) would make it clear that if the Commissioner of Customs or other party within the prescribed period of limitation applies in the prescribed form to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal, the High Court may do so. What is clear on a reading of sub-section (4) is that the High Court has a discretion on the facts of each case either to do so or not to do so. This becomes absolutely plain from the first word in sub-section (4), namely, “if” - There is nothing in the language of Section 130A which first mandatorily obliges the High Court to call for a statement from the Tribunal before deciding any such application.
Appeal disposed off.
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