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2018 (10) TMI 1801

..... tral 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 - question of applicability of notification which is a question having a relation to the rate of duty of Customs for the purpose of assessment - maintainability of appeal to High Court - appropriate forum. HELD THAT:- The issue as to whether the appellant would be entitled to the benefit of exemption Notification is a matter, which can be decided only by the Hon’ble Supreme Court - reliance can be placed in the case of NAVIN CHEMICALS MFG. & TRADING CO. LTD. VERSUS COLLECTOR OF CUSTOMS [1993 (9) TMI 107 - SUPREME COURT]. This appeal is not maintainable and accordingly, the same is dismissed giving liberty to the appellant to pursue the matter before the appropriate forum - Appeal dismissed being not maintainable. - Civil Miscellaneous Appeal No. 2461 of 2018 and M.P. No. 17335 of 2016 - 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 .....

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..... notification the goods imported should be the same as exported . Since the Fuel Engine Pumps could not be considered as the same as exported because what has been imported are engines fitted with fuel engine pump, under 94-96. 4. Appellant gave a reply to the demand notice. Personal hearing was given. Adjudicating Authority held that Fuel Injection pumps were originally exported to be fitted, on the Engine Assembly to be imported. Fuel Injection pumps and fuel injectors are manufactured in India and the same were sourced from the local ancillary unit. The components are from abroad where they are assembled with other components that go into the manufacture of a complete Engine Assembly. The Adjudicating Authority held that if the Fuel Injectors and Pumps were reimported as such without fitment on engine, then and only then they are the same 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 t .....

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..... g to counsel, they should be deemed to be the same as the goods exported. We find it difficult to be persuaded to accept this argument. We have already extracted the text of the Explanation in an earlier part of this order. The processes of melting, recycling and recasting mentioned in the Explanation are obviously relatable to the exported items only and not to extraneous goods like the engine in the present case. There is no denial of the fact that the pumps and injectors were not melted, recycled or recast into a different product, but these items classified by the appellants themselves under SH 841.81 and engines classified by them under SH 8408.20 were assembled into a new product classifiable under Heading 87.08. It was this product which was presented for clearance under the subject bills of entry. On these facts we have no hesitation to 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 .....

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.....  Learned Counsel for the Revenue, relied on the judgment of the Hon ble Supreme Court in Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs, reported in 1993 (68) E.L.T. 3 (S.C.). Paragraph Nos. 7 to 12, which lays down the law, reads as under. 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 mast 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 advised treated separately and placed before Special Benches for decision because they, more often tha .....

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..... the Central Board of Excise and Customs and the Collector of Customs to call for and examine the record of any proceedings before authorities subordinate thereto and examine the legality or propriety thereof and also to direct such authorities to file appeals. Sub-section (5) was added to Section 129D by the Customs & Central Excise Laws Amendment Act, 1988 and it reads thus : (5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation. - For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination 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 va .....

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..... t 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. 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 value of the goods. (emphasis supplied) 16. The said judgment squarely applicable to the facts of this case. The issue as to whether the appellant would be entitled to the benefit of exemption Notification is a matter, which can be decided 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.& .....

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