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2018 (10) TMI 1801

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..... ter before the appropriate forum - Appeal dismissed being not maintainable. - Civil Miscellaneous Appeal No. 2461 of 2018 and M.P. No. 17335 of 2016 - Dated:- 9-10-2018 - S. Manikumar and Subramonium Prasad, JJ. Shri Vijay Nair, for the Appellant. Shri A.P. Srinivas, for the Respondent. ORDER This appeal is directed against the Final Order No. 40947 of 2016, dated 14-6-2016, on the file of the Customs, Excise and Service Tax Appellate Tribunal, Chennai [2017 (346) E.L.T. 499 (Tri. - Chennai)]. 2. Brief facts of the case are as follows :- Appellant exported Fuel Injection Pumps on FOC basis under bond, without payment of excise duty, for fitting the same, on the engines imported to India. Appellant claimed benefit of exemption Notification No. 94 of 1996, dated 16-12-1996. Conditions appended to the said notification are as under :- Provided that the Assistant Commissioner of Customs is satisfied that, - (a) The goods (other than the goods exported) under the Duty Exemption Scheme (DEEC) or the Export Promotion Capital Goods Scheme (EPCG) or Duty Entitlement Passbook Schemes are re-imported within three years after the exportation or within such extended period, not exceed .....

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..... me as exported. However, when they are fitted to all the engines, they become the integral part of the engine and have no individual identity and therefore, goods which are reimported are not the same goods, which are exported. 5. The demands were confirmed by the Adjudicating Authority in the order, dated 18-2-2004. 6. Appeal was taken before the Commissioner of Appeals. Commissioner of Appeals and vide, order, dated 18-2-2005, the Commissioner of Customs (Appeals) upheld the order of the Adjudicating Authority. 7. Matter was further taken up before the Customs, Excise and Service Tax Appellate Authority, in Appeal No. C/121/2008-DB (Appeals were initially filed before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi and was later transferred to Chennai). 8. Tribunal by the impugned order, dismissed the appeal, on the ground that the same issue is covered by an earlier decision of the Tribunal in Ford India Private Limited v. Commissioner of Customs, Chennai [2008 (228) E.L.T. 71 (Tri. - Chennai). In the above-mentioned judgment, Tribunal has observed as under :- We have given careful consideration to the submissions. The essential facts are no .....

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..... hold that, for purposes of Customs Notification No. 94/96 ibid, these imports do not merit consideration as reimports of the fuel injection pumps and injectors exported by the party. The benefit of the notification has been rightly denied to the appellants on the ground of non-fulfilment of one of the substantive conditions stipulated under the first proviso to the notification. 9. Tribunal also relied on a Board s Circular No. 1/2005, dated 11-1-2005, issued by the Central Board of Excise and Customs, to the effect that Fuel Injection Pumps and Injectors exported and reimported after fitment into engines are not covered under Notification No. 94/96-Cus., dated 16-12-1996. 10. Aggrieved against the above said order, the appellant has come forward with the present civil miscellaneous appeal, for the relief stated supra. 11. The short issue which arises for consideration is- Whether the appellant would be entitled to exemption under Notification No. 94/96-Cus., dated 16-12-1996 or not? 12. The Learned Counsel for the Revenue raised a preliminary objection, regarding maintainability of the appeal on the ground that, it relates to the question of applicability of n .....

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..... lue 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 advised treated separately and placed before Special Benches for decision because they, more often than not, are of importance not only to the importers who are parties thereto but also to many other importers who import or propose to import the same or similar goods. Since the decisions of CEGAT in such matters would have wide application they are, by the terms of the statute, to be rendered by Special Benches. The phrase relation to is, ordinarily, of wide import but, in the context of its use in the said expression in Section 129-C, it must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for the purposes of assessment. 8. Before we consider whether the case of the appellant fails within the said expression, we must note that Section 130, sub-section (1) and Section 130E, Clause (b) of the said Act also use the said expression and they refer respectively to the Statement of Case to the .....

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..... ermination of a question, - (a) relating to the rate of duty for the time being in force, whether under the Customs Tariff Act, 1975 (51 of 1975), or under any other Central Act providing for the levy and collection of any duty of customs, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods fall under a particular heading or subheading of the First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975), or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or (d) whether the value of any goods for the purposes of assessment of duty shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act. 11. It will be seen that sub-section (5) uses the said expression determination of any question having a relation to the rate of duty or to the value of goods for the .....

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..... only by the Hon ble Supreme Court. 17. The above said judgment has also been followed by the High Court of Madras in the case of Commissioner of Customs (Exports), Chennai v. D.S. Metal (P) Ltd., reported in 2015 (323) E.L.T. 328. This Court after quoting the judgment in Navin Chemicals in Paragraph Nos. 5 to 7, observed as under :- 5. The present appeal is filed under Section 130 of the Customs Act and it is apposite to refer to Section 130(1) of the Customs Act, which reads as under : 130. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order 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 purpose of assessment), if the High Court is satisfied that the case involves a substantial question of law (emphasis supplied) 6. In the present case, the issue that arises for consideration is what will be the rate of duty that is payable by the first respondent, but for the notification in question. Therefore, the objection of the Learned Coun .....

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