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2019 (9) TMI 229

..... tion notification, would lie before the High Court under the provisions of Section 130 of the Customs Act, 1962 or to this Court under the provisions of Section 130E of the Customs Act? HELD THAT:- An appeal shall lie to the High Court against every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. The only exception carved out is that an appeal shall lie before this Court and shall not lie before the High Court against the order relating, amongst other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment. Only if any question having relation to the rate of duty is involved in an appeal or if it relates to value of goods for the purpose of assessment, the appeal would lie to this Court and in all other cases it would lie before the High Court. The issue is no more res integra - In a catena of the judgments, right from the judgment of this Court in the case of Navin Chemicals Manufacturing & Trading Company Ltd. vs. Collector of Customs, [1993 (9) TMI 107 - SUPREME COURT], the position has been clarifi .....

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..... Gavai, J. Leave granted in S.L.P.(C) No. 29444/2012 and S.L.P.(C) No. 12755/2015. 2. A short question that arises for consideration in these appeals is, as to whether an appeal from the order of Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the CESTAT ), involving an issue regarding violation of conditions contained in customs exemption notification, would lie before the High Court under the provisions of Section 130 of the Customs Act, 1962 (hereinafter referred to as the Customs Act ) or to this Court under the provisions of Section 130E of the Customs Act. 3. The facts in the present matter are not in dispute. For the sake of convenience, we would refer to the facts in Civil Appeal No. 10083/2011, inasmuch as the impugned judgment and order(s) in all other connected appeals are passed following the judgment and order passed by the Karnataka High Court in CS TA No. 2/2007. 4. The assessee is a leading manufacturer of pagers. The assessee is entitled to the benefit of Notification No. 30/1997- Customs dated 01.04.1997 (hereinafter referred as the said notification ) by which the materials imported into India for the manufacturing of the pagers wer .....

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..... appeal will have to be preferred before this Court under the provisions of Section 130E of the Customs Act. 6. The Division Bench of the High Court held that it was called upon to decide whether the terms and conditions of the said notification have been complied with by the assessee or not and whether the levy of duty, interest and penalty were legal or not and whether the CESTAT was justified in setting aside the levy of duty, interest and penalty and all these questions were related to determination of the rate of duty. The Division Bench of the High Court, therefore, held that the appeal under Section 130 of the Customs Act was not tenable before the High Court but would be tenable under Section 130E of the Customs Act before this Court. Being aggrieved thereby, the Revenue is in appeal before this Court. 7. We have heard Ms. Pinky Anand, learned Additional Solicitor General appearing on behalf of the appellant-Revenue and Mr. Balbir Singh, learned Senior Counsel appearing on behalf of the respondent-assessee. 8. For appraising the rival contentions, it would be apposite to refer to Section 130 and Section 130E of the Customs Act, 1962 (as it existed prior to its amendment by t .....

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..... . (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. Xxx 130E. Appeal to the Supreme Court-An appeal shall lie to the Supreme Court from- (a) Any judgment of the High Court delivered- (i) In an appeal made under Section 130; or (ii) On a reference made under Section 130 by the Appellate Tribunal before the 1st day of July, 2003; (iii) On a reference made under Section 130A, in any case which, on its own motion or on an oral app .....

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..... GAT sitting singly can hear appeals in the matters enumerated therein provided that they are not cases where 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 is in question. 7. The controversy, therefore, relates to the meaning to be given to the expression determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment . It seems to us that the key lies in the words for purposes of assessment therein. Where the appeal involves the determination of any question that has a relation to the rate of customs duty for the purposes of assessment that appeal must be heard by a Special Bench. Similarly, where the appeal involves the determination of any question that has a relation to the value of goods for the purposes of assessment, that appeal must be heard by a Special Bench. Cases that relate to the rate of customs duty for the purposes of assessment and which relate to the value of goods for the purposes of assessment are advisedly treated separately and placed before Special Benches for decision because they, more often than not, are .....

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..... ate of duty or the value of the goods. 12. It could thus clearly be seen that, this Court, while considering the provisions of Section 130 and Section 130E of the Customs Act, has held that where an appeal involves determination of any question that has relation to customs duty for the purpose of assessment or where an appeal involves determination of any question that has relation to the value of goods for the purposes of assessment, such cases will have to be treated separately and have to be given special treatment. 13. Recently, again this Court, in a decision, in the case of Steel Authority of India Ltd. Vs. Designated Authority, Directorate General of Anti-Dumping & Allied Duties, reported in (2017) 13 SCC 1, has reiterated the same position. It would be appropriate to refer to para 18 of the said judgment which reads as follows: 18. Section 130-E(b) of the Act provides for a direct appeal to the Supreme Court against an order of the Appellate Tribunal, broadly speaking, on a question involving government revenue. This seems to be in view of the fact that the order that would be under appeal i.e. (order of the Appellate Tribunal) may go beyond the inter se dispute between .....

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..... held that before admitting an appeal under Section 130-E(b) of the Customs Act, the following conditions must be satisfied: (i) The question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130-E(b) of the Act. (ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessitating a resolution. (iii) If the Tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter. (iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occasioning a failure of justice. 22. The above parameters, which by no means should be considered to be exhaustive, may now be applied to the case of the parties before us to decide the primary question indicated at the outset of th .....

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