TMI Blog2022 (4) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. The appellant may prefer an appeal before the Hon ble Supreme Court of India and this court will have no jurisdiction. Appeal dismissed. - CUSTOM APPEAL NO. 13 OF 2021 - - - Dated:- 6-4-2022 - K.R. SHRIRAM N. R. BORKAR, JJ. Mr. Jitendra B. Mishra a/w Mr. Ashutosh Mishra and Ms. Maya Majumdar for Appellant. Dr. Sujay Kantawala a/w Mr. Brijesh Pathak, Mr. Sujit Sahoo, Mr. Mahadev Lomde and Mr. Aditya Talpade i/b Mr. Sujit Sahoo for Respondent. P.C. : 1. Appellant is aggrieved by an order dated 11th September, 2020 passed in Customs Appeal No. 85078 of 2019 by the Customs, Excise Service Tax Appellate Tribunal, West Zonal Branch, Mumbai (CESTAT). In the appeal filed, following three substantial qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal memo (quoted in paragraph 1 above) and would request this court to include the re-framed substantial questions of law in addition to third question of law proposed (quoted in paragraph 1 above) in the appeal memo. 4. At the outset Dr. Kantawala raised a preliminary objection on the issue of jurisdiction of this court. Dr. Kantawala submitted that under Section 130(1) of the Customs Act, 1962 (the Act) an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal 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 the purposes of assessment, if the High Court is satisfied that the case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontroversy which arises for determination is in the nature of classification dispute, which relates directly and proximately to the rate of duty applicable for the purpose of assessment and therefore the appeal would lie only before the Hon ble Supreme Court of India. 6. Dr. Kantawala further submitted that against the impugned order of CESTAT, respondent has preferred Civil Appeal No. 3804 of 2020 with Interlocutary Application No.121188 of 2020 before the Hon ble Supreme Court of India challenging the higher duty claim under MEIS, i.e., the order on classification passed by CESTAT which appeal is pending. Dr.Kantawala states that the said appeal is restricted to the order of CESTAT with regard to the original order passed by CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se if one reads the memo of appeal containing the statement of facts and the grounds raised holistically, the main controversy is in the nature of classification dispute. Even the show cause notice issued under Section 124 of the Act read with Section 28 of the Act reads .. has been exporting ropes made of PP (Polypropylene) and PP Polyester declaring them under RITC 56079090, availing MEIS benefits of 5%, whereas as per the ITC (HS) Code given by DGFT, the Ropes made of Polyethylene or Polypropylene should be classified under RITC 56074900 attracting MEIS benefit of 2% . Paragraph no. 43 (I) of the show cause notice which is the basis of the main controversy called upon respondent to show cause as to why the ropes . which were expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , certainly, without deciding on the classification of goods how can be the department decide what was the duty to be levied and whether it has been properly paid or there has been a short payment. Mr. Mishra relied upon judgment of Venus Enterprises vs. Commissioner of Customs, Chennai 2006 (199) E.L.T. 405 (Mad.) and submitted that the law is well with the show cause notice under the provisions of Section 28 of the Act for payment of customs duty not levied or short levied or erroneously refunded can be issued subsequent to the clearance of the goods under Section 47 of the Act. Certainly we do not have any quarrel on this proposition suggested by Mr.Mishra. That is not the issue in the case at hand. To decide whether there is short l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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