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2015 (12) TMI 1434 - GUJARAT HIGH COURT

2015 (12) TMI 1434 - GUJARAT HIGH COURT - 2016 (332) E.L.T. 688 (Guj.) - Writ petition against the order of Tribunal refusing to rectify the error which was apparent on record - Tribunal, which, by an order dated 6.2.2014 partly allowed the appeal by holding that the petitioner is eligible for the benefit of CVD as per Serial No.202A of Notification No.21/2002-Cus dated 1.3.2002. The Tribunal further held that since separate value of 16mm, 20mm, 25mm and 32mm TMT bars was not made available, sep .....

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o establish the value of 16 mm TMT bars was already there on the record in the form of the bill of lading indicating the quantity of goods as well as the commercial invoices indicating the price of the 16 mm TMT bars.

Therefore, the duty of 16mm TMT bars can easily be worked out on the basis of the available record. Under the circumstances, the finding recorded by the Tribunal in the order dated 6.2.2014 as well as in the impugned order dated 23.6.2014 made on the rectification appli .....

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THE PETITIONER : MR HARI RADHAKRISHANAN, ADVOCATE with MR DERRICK SAM, ADVOCATE with MR DHAVAL SHAH, ADVOCATE FOR THE RESPONDENT : MS MAITHILI MEHTA ADVOCATE, MR RJ OZA, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Ms. Maithili Mehta, learned standing counsel waives service of notice of rule on behalf of the first respondent and Mr. R. J. Oza, learned senior standing counsel waives service of notice of rule on behalf of the second respondent. Having regard to the .....

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s imported by the petitioner vide bill of entry No.74 dated 21.8.2008. 3. The facts stated briefly are that the petitioner imported Deformed Steel Bars Grade HRB from Hongkong of various sizes, viz., 16mm, 20mm, 25mm and 32mm. The petitioner filed bills of entry together with other relevant documents like packing list, bill of lading, etc. The petitioner claimed that the goods imported by it are unalloyed and non-alloyed steel as per Indian Standard Classification of Steels (IS 7598:1990) as all .....

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ng list and bills of lading. A show cause notice came to be issued to the petitioner proposing to levy additional customs duty contrary to the exemption granted in terms of Serial No.202A of Notification 21/2002 which culminated into an order-in-original dated 5.12.2011, confirming the stand taken in the show cause notice. The petitioner carried the matter in appeal before the Commissioner of Customs (Appeals), Kandla, who, by an order dated 5.2.2013, dismissed the appeal. The petitioner carried .....

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order passed by the Tribunal on the ground that though 16 mm TMT bars imported by the petitioner are eligible for exemption under Serial No.190C of Notification No.21/2002-Cus dated 1.3.2002, the same cannot be practically extended as the separate value of 16mm was not made available and, therefore, the duty exemption available for 16 mm TMT bars cannot be assessed. It is the case of the petitioner that it has submitted copies of packing list and bill of lading to indicate the quantity of each .....

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ench had come to the conclusion in the absence of separate value of 16 mm TMT bars, separate duty cannot be assessed for 16 mm TMT bars. Being aggrieved, the petitioner has filed the present petition. 5. Mr. Hari Radhakrishanan, learned advocate for the petitioner, assailed the impugned order by inviting the attention of the court to certain documents which were already on the record before the Tribunal, to point out that as per the test results the content of vanadium in 16 mm TMT bars was with .....

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e, inasmuch as, the bill of lading clearly indicates the quantity of 16 mm TMT bars and the commercial invoice clearly shows the price of the 16 mm TMT bars. It was submitted that, therefore, the value of the 16 mm TMT bars could be easily worked out on the basis of the price and the quantity of 16 mm TMT bars. Under the circumstances, the Tribunal was not justified in rejecting the application for rectification of mistake made by the petitioner. 6. Mr. R. J. Oza, learned senior standing counsel .....

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nder the circumstances, the appeal deserves to be dismissed on the preliminary ground of not being maintainable before this court. 6.1 On the merits of the case, the learned counsel has reiterated the contents of the affidavit-in-reply filed on behalf of the respondents No.1 and 2. 7. Since an objection has been raised to the very maintainability of the petition on the ground that appeal against the impugned order of the Tribunal would lie to the Supreme Court, it would be necessary to firstly d .....

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es qua entertaining an appeal under section 130 of the Act. However, while exercising powers under Article 226 of the Constitution of India would be different. Having regard to the fact that an appeal against any order relating to any dispute involving determination of any question relating to the rate of duty or value of goods for the purposes of assessment, lies before the Supreme Court and not before this court, ordinarily, this court even in exercise of powers under Article 226 of the Consti .....

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value of 16 mm TMT bars was not available on the record and hence, separate duty could not be assessed for the 16 mm TMT bars. The petition raises a narrow controversy, based upon a factual error committed by the Tribunal. Under the circumstances, in the opinion of this court, this is not a case where the petitioner is required to be relegated to avail of the alternative remedy under the statute. Considering the scope and nature of the controversy involved, this court is of the view that the con .....

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