TMI Blog2022 (1) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... CATION (FOR STAY) NO. 1 of 2021 - - - Dated:- 6-1-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE MR DEVANG VAYS, ADDITIONAL SOLICITOR GENERAL OF INDIA WITH MR DHAVAL D VYAS FOR THE APPELLANT MR D K TRIVEDI FOR THE OPPONENT ORDER PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA 1 Since the issues raised in all the captioned appeals are the same, those were taken up for admission analogously. 2 All the three Tax Appeals under Section 130 of the Customs Act, 1962 (for short, the Act, 1962 ) are at the instance of the Revenue and are directed against the common order passed by the Customs, Excise, and Service Tax Appellate Tribunal (for short, the CESTAT ), West Zonal Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uel classified as IS 1460 : 2005 and the samples were other than the Base Oil. 6 In view of the aforesaid, the Revenue issued show cause notice calling upon the respondents herein to show cause as to why the entire consignment of the HSD should not be confiscated and penalty be imposed under Section 112(a) and (b), Section 114AA read with Section 117 of the Customs Act. The show cause notice came to be adjudicated by the Commissioner of Customs, Kandla, who, vide order in original dated 3rd December 2019, reclassified the imported goods under CTH 27101930 as HSD and confiscated the imported goods with an option to reexport on payment of fine / penalty upon the respondents companies and individual Directors of the Companies under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Mr. Modh raised a preliminary objection with regard to the very maintainability of the three appeals before this High Court under Section 130 of the Act, 1962. According to both the learned counsel, an appeal shall lie to the High Court from every order that may be passed by the Appellate Tribunal, except 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 purposes of assessment. Both the learned counsel very vehemently submitted that the three appeals before us involve questions relating to the rate of duty of customs and classification, and in such circumstances, the appeal would lie before the Supreme Court under Section 130E of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals are very much maintainable before this High Court under Section 130 of the Act as the order impugned does not relate to the determination of any question having a relation of the rate of duty of customs or to the value of goods for the purposes of assessment. 15 The principal argument canvassed on behalf of the Revenue is that if the imported goods is to be treated as HSD, then, it is per se prohibited (except to be imported by State Trading Enterprise). In other words, the very import of the HSD is prohibited. Any goods, which are prohibited from being imported, they are liable to be straightway confiscated with imposition of appropriate fine and penalty. In such circumstances, there is no question of any determination as regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court under Section 130 of the Act. 19 Mr. Vyas submitted, relying upon the decision of the Supreme Court in the case of Navin Chemicals Mfg and Trading Co. Ltd vs. Collector of Customs [1993 (68) ELT 3 (SC)], that the expression determination of any question having a relation to the rate of duty of customs or to the value of goods for the purposes of assessment must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. Mr. Vyas placed much emphasis on the observations made in para 11 of the said judgement. Para 11 reads thus: It will be seen that Sub-section 5 uses the said expression 'determination of any question having a relation to the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment. 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. 20 Navin Chemicals Mfg (supra) has been referred to and relied upon by the Supreme Court in the case of Steel Authority of India vs. Designated Authority Directorate General of Anti-Dumping and Allied Duties [2017 (349) ELT 193 (SC)]. 21 Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to admit all the three appeals on the following substantial questions of law: a. Whether the Tribunal was rig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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