TMI Blog2020 (3) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is that the decision of the Supreme Court in COMMISSIONER OF CUSTOMS, BANGALORE-1 VERSUS M/S MOTOROLA INDIA LTD. [ 2019 (9) TMI 229 - SUPREME COURT] could not be shown to the court. Moreover, nothing has been pointed out as to how the order dated 26.09.2019 passed by this court is not in consonance with the above decision. It is manifest that the matter would require a long-drawn process of reasoning on a point on which there may conceivable be two opinions. Under the circumstances, it cannot be said that the order dated 26.09.2019 suffers from any error apparent on the face of the record, warranting interference. Application dismissed. - MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019 In R/TAX APPEAL NO. 535 of 2019 - - - Dated:- 26-3-2020 - HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN MR ANKIT SHAH FOR THE PETITIONER MR PARESH M DAVE FOR THE RESPONDENT JUDGMENT ( PER : HONOURABLE MS. JUSTICE HARSHA DEVANI ) 1. By these applications, the applicant (original appellant) seeks review of the order dated 26.09.2019 passed by this court in Tax Appeal No.535 of 2019, whereby this court had disposed of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case, the appeals would still not be maintainable, and hence, there is no warrant for exercise of powers of review. 5.1 It was submitted that the question involved in the appeals is as regards the applicability of the exemption notification; whereas the case before the Supreme Court in M/s Motorola India Ltd. (supra) involved an issue regarding violation of conditions contained in the customs exemption notification and that the question of applicability of the notification was not in dispute. It was submitted that the issue in that case was regarding recovery of customs duty and interest for breach of conditions of the notification. It was pointed out that the Supreme Court in paragraph 16 of the judgment has carved out categories of cases in which the Legislature intended to give special treatment of providing an appeal directed to the Supreme Court; one such category is: (iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification. 5.2 It was submitted that the only question involved in the case of M/s. Motorola India Ltd. (supra) was whether the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an exemption notification, relates directly and proximately to the rate of duty applicable thereto for the purpose of assessment. The Division Bench also placed reliance upon another judgment of this Court rendered in the case of Commissioner of Central Excise, Chandigarh-1 v. Suraj Udyog Ltd., 2003 (158) E.L.T. 684 (P H). 5.4 It was submitted that thus, whether goods are covered by exemption notification is also a question relating to rate of duty. 5.5 Reliance was also placed upon the decision of the Madras High Court in Maruti Udyog Ltd. v. Commissioner of Customs (Sea Port/Import), Chennai, 2019 (369) ELT 354 (Mad.) wherein the court held thus: 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? xxx xxx xxx 15. Learned counsel for the revenue, relied on the judgment of the Hon'ble Supreme Court in Navin Chemicals MFG Trading Co. Ltd., Vs. Collector of Customs, reported in 1993 (68) ELT (3) SC. Paragraph Nos.7 to 12, which lays down the law, reads as under. 7. The controversy, therefore, relates to the meaning to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of any question having a relation to the rate, of duty of customs or to the value of goods for purposes of assessment'. 9. The importance of the present appeal lies not so much in deciding which appeals can be heard by a member of CEGAT sitting singly and which by a Special Bench thereof as in determining where a reference can be made by CEGAT to the High Court and in which cases an appeal against an order of CEGAT can be filed directly before the Supreme Court. Where an appeal lies to the Supreme Court, the necessity of the reference on a question of law to the High Court is obviated. An appeal to this Court is provided where, as aforementioned, the questions in issue, relating to the rates of duty or the value of goods for the purposes of assessment, have relevance not only for the parties there concerned but for other importers as well. 10. Section 129-D deals with the powers of 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 add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly confines the definition of the said expression to Sub-section (5) of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have, given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods for purposes of assessment. In the circumstances, the present appeal which relates to the applicability of the above referred circular, relates directly to the determination of rate of duty for the purpose of assessment and as such, in the light of the provisions of Section 35G read with Section 35L of the Act, this Court has no jurisdiction to entertain the appeal. (emphasis supplied) For the foregoing reasons, we hold this appeal is not maintainable and accordingly, the same is dismissed giving liberty to the appellant to pursue the matter before the appropriate forum. Since the appeal is held not maintainable, we do not propose to go into the merits of the questions of law raised for consideration. No costs. 5.6 Reference was made to the decision of the Kerala High Court in C.C.E., C. S.T., Thiruvananthapuram v. Kerala State Beverages, 2014 (300) ELT 217 (Ker.) 4. The ratio of the precedents cited in support of the objection as to maintainability is that the question as to whether any goods are excisable or not, would also fall within the exclusion in terms of sub-section (1)) of Section 35G and that the bifurcation of jurisdiction between the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and more importantly, if we were to find jurisdiction with the High Courts to decide as to whether there could be levy of duty of excise in relation to a particular situation, incidence or goods, that would be conceding to the position that what would be left to the Supreme Court is only to determine the rate of tax and the value of goods for the purpose of assessment which matters would get confined to issues which are fundamentally inferior in jurisprudential content vis-a-vis questions relating to the coverage itself. We do not see that the Act envisages that the High Courts would have the power of such nature that they decide the question of coverage; leaving to the Supreme Court only issues relating to the rates, sans the issue of coverage. We say this in furtherance of the reasoning that led to the precedents cited on behalf of the respondent. 5.7 It was submitted that coverage and rate of duty are two propositions. Whether conditions of notification are satisfied or not is also relevant to determine the rate of duty. Charging section and rate make a harmonious interpretation. 5.8 Reliance was also placed upon the decision of this court in Commissioner of Central e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of status of the subject Unit will be one of the steps in the process of assessment. This exercise would be an exercise; which can be said to be part of the assessment. In this view of the matter, in our view, the dispute involved in the appeal and the substance thereof is: what should be rate of duty on the goods cleared to the Domestic Tarrif Area (D.T.A.). We have, thus, no hesitation to hold that the direct and proximate issues involved in the appeal for the purposes of assessment relate to the rate of duty applicable to the goods and the value thereof and the issue requiring determination of the status of the subject Unit would be one of the incidental issues. The contentions raised by the appellants, catalogued in Para (19) supra, also revolve around the rate of duty and valuation of goods for the purposes of assessment. 10. In the light of the aforesaid judicial pronouncements, it is apparent that the question as to the applicability of a notification or a circular which has a bearing on the determination of the rate of duty is a question which has a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er No.465 (Lot 8) and (Lot 5), the work order was allotted to Mobile Jamnagar Plant and the clearance of goods was exempted from duty in terms of Notification No.108/95-CE dated 28.8.1995. The pipes were manufactured by Jamnagar Division on job work basis and cleared by Jamnagar Mobile Plant to GWSSB. (5) That no undertaking under Notification No.214/86-CE dated 25.3.1986 was filed with the said Division before jurisdictional authority and, therefore, Jamnagar Mobile Plant cannot be considered as job worker. Even the permission given by the Commissioner was subject to fulfilment of condition of Trade Notice No.36/2003 that the original and duplicate copies of challan shall accompany the inputs or partially processed input which was not followed. The Jamnagar Mobile Plant has not worked as job worker but independent manufacturer. (6) Central Excise Duty of ₹ 1,03,52,230/- was demanded from Dehgam Mobile Plant on the ground that the activity undertaken by them on account of SP Division cannot be considered as job work and they being manufacturer are liable for duty. (7) Central Excise Duty of ₹ 5,79,34,667/- was demanded from Kutch Division on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading Company Ltd. v. Collector of Customs, reported in (1993) 4 SCC 320, the position has been clarified. We may gainfully refer to paragraphs 6, 7 and 11 of the said judgment wherein, this Court considered the provisions of Section 130 and Section 130E of the Customs Act. They read thus: 6. xxx xxx xx 7. xxx xxx xxx 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 purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Xxxxx 16. We are of the considered view that the Legislature has carved out only following categories of cases to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in the Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170: 8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389, speaking through Chinnappa Reddy, J., has made the following pertinent observations: It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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