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The Commissioner of Customs (Air) Custom House Versus M/s. BSES Kerala Power Ltd., Customs, Excise & Service Tax Appellate Tribunal

2015 (7) TMI 132 - MADRAS HIGH COURT

Demand of differential duty - Rate of duty - Maintainability of appeal - Held that:- In view of the provision of Section 130, which exempts appeal to be entertained by the High Court in relation to rate of duty, the objection as raised by the respondent as regards maintainability is liable to be sustained in view of the decision of the Supreme Court in Navin Chemicals case (1993 (9) TMI 107 - SUPREME COURT OF INDIA), which decision has been followed by this Court in Commissioner of Central Excis .....

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sent appeal. Vide order dated 3.12.2010, while admitting the appeal, this Court framed the following substantial questions of law for consideration :- "1) Whether the cost of the material surrendered to the foreign company while refurbishing the exported product for repair, should be included in the value for the purpose of levy of duty as under Customs Notification No.94/96 or not? 2) Whether the Hon'ble CESTAT is correct in its interpretation that the said notification prescribed a se .....

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rement for assessment of the impugned imports? 4) Whether Hon'ble CESTAT is correct in allowing the appeal not canvassed by the 1st respondent, but that drawn out on its own volition that too by not giving an opportunity to the appellant herein to meet and counter such points?" 2. The short facts of the case are that on the basis of the show cause notice issued, the Commissioner held that the assessee is liable to pay differential duty and also liable for payment of interest and penalty .....

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sessee. 4. At the outset, the learned counsel for the 1st respondent objected to the maintainability of the appeal before this Court on the above questions of law raised by the department. It is the plea of the learned counsel for the 1st respondent that Section 130 of the Customs Act, provides that an appeal on the issue relating to rate of duty of excise or value of goods for purposes of assessment would not lie before this Court. He placed strong reliance on the decision of the Supreme Court .....

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relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129-D, it is proper that the said ex .....

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ate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. .....

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