TMI Blog2015 (8) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty of Customs, appeal was not maintainable in high court, instead could be maintained only before Supreme Court per clause (b) of Section 130E of Customs act, 1962 – Therefore, preliminary objection of respondent upheld – Decided against Revenue. - D.B. Customs Appeal No. 3 of 2009 - - - Dated:- 23-10-2013 - Dinesh Maheshwari and Narendra Kumar Jain-II, JJ. Shri Anil Mehta, for the Appellant. Shri C. Hari Shanker with Sameer Jain, for the Respondent. ORDER The Commissioner of Customs, Jodhpur Headquarters at Jaipur seeks to maintain this appeal under Section 130(1) of the Customs Act, 1962 ( the Act ), against the Order dated 7-10-2008, [2009 (236) E.L.T. 104 (Tri.-Del.)], passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi ( the Tribunal ) in Customs Appeal No. 716/2007 whereby, the Tribunal, has after upholding the order dated 31-7-2007 passed by the Commissioner (Appeals-I), Customs Central Excise, Jaipur to the effect that Notification No. 29/2004-Cus., dated 28-1-2004 was retrospectively applicable in respect of the obligations of the respondent under EPCG licence dated 31-7-1995, has remitted the question fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,38,97,422/-. Thus, the duty foregone on the import of such capital goods had been to the tune of ₹ 1,02,32,963/-. 6. However, the Deputy Commissioner of Customs ICD, Kota issued a Show-cause Notice for recovery of the aforesaid foregone duty amount of ₹ 1,02,32,963/- alongwith interest on the allegations that the respondent failed to fulfill condition Nos. 2, 3, 4 of the said Notification No. 28/97-Cus., dated 1-4-1997. The Deputy Commissioner adjudicated on the Show Cause Notice by the Order-in-Original No. 1/2000, dated 4-5-2000; and confirmed the demand essentially with the finding that the party had not fulfilled its export obligation by exporting the goods manufactured by use of the imported capital goods; and did not submit any documentary evidence to prove that it had exported the goods manufactured by use of the said imported capital goods, as required under para 6.5 (i) of the Exim Policy and explanation (iv) to the said Notification No. 28/97-Cus., dated 1-4-1997. 7. It appears that in the meanwhile, the respondent had obtained a certificate from DGFT to the effect that the export obligation imposed by the EPCG licence had been fulfilled. Then, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the order so passed by the Commissioner (Appeals-I), the department filed an appeal (No. 716/2007) before the Tribunal that has been decided by the impugned Final Order No. C/369/2008, dated 7-10-2008. 10. As noticed, though the department seeks to maintain this appeal against the aforesaid order dated 7-10-2008 on the suggested questions of law, but the respondent has questioned its maintainability per sub-section (1) of Section 130 of the Act. 11. The learned Counsel for the respondent has contended that in view of the clear exception carved out of the appellate jurisdiction of this Court in sub-section (1) of Section 130 of the Act in relation to the questions having relation to the rate of duty for the purposes of assessment; and, for the subject matter of the order impugned being directly related with the question of rate of duty of Customs, an appeal against the same could only be maintained before the Hon ble Supreme Court per Section 130E of the Act. The learned Counsel has referred, inter alia, to the decisions in Navin Chemicals Mfg. Trading Co. Ltd. v. Collector of Customs - 1993 (68) E.L.T. 3 (S.C.); Laxmi Udyog v. Commissioner of Central Excise - 2002 (142) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of Customs or to the value of goods for purposes of assessment. 15. In the frame as it existed earlier, in Section 129C of the Act, where the determination of any question having a relation to the rate of duty of Customs or value of goods for the purpose of assessment was to be heard by a Special Bench, the Hon ble Supreme Court in the case of Navin Chemicals (supra) laid down the test for the purpose of forum in the following :- 12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT : does the question that requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the val ue of the goods. 16. In the case of Motorola India (supra), the Hon ble Karnataka Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of such goods. Un doubtedly such question is a question of law but since it relates to determination of rate of Excise Duty payable thereon, the conclusion is irresistible that the reference under Section 35G is not envisaged under the Act of 1944. Such an order is directly challenged to Supreme Court under Section 35L. 18. In Mangalore Refineries case (supra). the question before the Hon ble Karnataka High Court was as to whether Low Sulphur Heavy Stock (LSHS), produced in the refinery, was not excisable and the assessee was entitled to the benefit of Notification No. 67/95-CX. for its captive consumption. The question arose in the circumstances that though LSHS was captive consumed for steam generation which in turn, was utilized for production of electricity but then, the electricity so generated was allegedly diverted for the purposes other than the use in or in relation to the manufacture of petroleum products. The Court held that the issue related to the rate of duty and the appeal against the order of the Appellate Tribunal lay to the Supreme Court and not to the High Court. 19. In the case of Primella Sanitary Products (supra), in relation to the dispute as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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