TMI Blog2023 (10) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in STEEL AUTHORITY OF INDIA LTD. VERSUS DESIGNATED AUTHORITY, DIRECTORATE GENERAL OF ANTI-DUMPING ALLIED DUTIES OTHERS [ 2017 (4) TMI 881 - SUPREME COURT ] has while explaining the ambit of the exclusionary provisions as appearing in Section 130 and Section 130E has culled out the basic principle to be that the determination of a rate of duty must be read as meaning a direct and proximate relation to the question of rate of duty. The determination by the CESTAT does not meet the test of real, direct and proximate relationship to rate of duty as enunciated by the Supreme Court in SAIL. An order which may merely have a consequential or inferential repercussion on the rate of duty question is not what is intended to be excluded from the ambit of Section 130 of the Act. Whether the writ remedy would be appropriate or whether the petitioners would have to be relegated to invoke the jurisdiction of the Court which otherwise flows from Section 130? - HELD THAT:- Section 130 constructs an adequate and efficacious alternative remedy for the purposes of considering all questions that may arise from the order of the CESTAT impugned before us. We also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal [CESTAT] which carves out color coated aluminum coils from the Customs Notification dated 06 December 2021, which itself had come to be promulgated pursuant to the determination undertaken by the Designated Authority, raises questions relating to the rate of duty liable to be imposed. According to learned counsels for the respondents, since this would clearly fall within the ambit of a rate of duty, consequently not only would the writ petition not lie, even the jurisdiction of this Court as conferred by Section 130 of the Act cannot be invoked. 2. We note that on the other hand, Mr. Kumar as well as Mr. Jain, learned counsels representing the Ministry of Finance and the Designated Authority respectively have contended that the jurisdiction of the Court would stand saved since the principal question which arises for determination is whether the CESTAT could have taken out colour coated aluminum coils from the Customs Notification dated 06 December 2021. According to them, the said order of the CESTAT is not only without jurisdiction but would also not fall within the scope and ambit of the expression question having a relation to the rate of duty which is spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the duty chargeable under section 9-A. Under section 130, an appeal has been provided to the High Court against a determination that has been made by the Tribunal and similarly under section 130-E an appeal has been provided to the Supreme Court against an order of the Tribunal on a question involving rate of duty or of valuation of the goods for the purposes of assessment. In relation to the Customs Act, an appeal under sub-section (2) of section 130 can be filed by the Commissioner of Customs or the other party aggrieved. The provisions of the Customs Act, 1962 inter alia in relation to appeals have been incorporated in section 9-A(8) of the Customs Tariff Act, 1975 and must, therefore, necessarily apply in a manner that would make the appellate provision intelligible and workable. We do not find any merit in the contention that the appeal would lie only after the issuance of a final notification. To hold so would be to read a restriction in the provisions of section 9-A(8) which the Parliament has not legislated. 4. Mr. Chidambaram, learned senior counsel appearing for the petitioners would contend that bearing in mind the nature of the adjudication undertaken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs, (1993) 4 SCC 320] , where this Court has taken the view that the expression determination of any question having a relation to the rate of duty of customs or, value of goods for 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. 20. The other is the decision of this Court in Collector of Customs v. Swastic Woollens (P) Ltd. [Collector of Customs v. Swastic Woollens (P) Ltd., 1988 Supp SCC 796 : 1989 SCC (Tax) 67 : AIR 1988 SC 2176], wherein this Court had an occasion to deal with the ambit of the appellate power under Section 130-E of the Customs Act. The following extract from the judgment in Swastic Woollens [Collector of Customs v. Swastic Woollens (P) Ltd., 1988 Supp SCC 796 : 1989 SCC (Tax) 67 : AIR 1988 SC 2176] amply summarises the view of this Court on the above question and therefore would require to be extracted: (SCC pp. 801-02, para 9) 9. Whether a particular item and the particular goods in this case are wool wastes, should be so considered or not is primarily and essentially a question of fact. The decision of such a question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution. (iii) If the Tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter. (iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occasioning a failure of justice. 7. As we see the order passed by the CESTAT and the directions which have been framed by it and the grounds on which it is challenged, it is manifest that the question which stands raised cannot be said to have a direct or proximate relationship to the rate of duty. The CESTAT has essentially deleted colour coated coils from the notification issued by the Union pursuant to the determination made by the Designated Authority. It has proceeded to do so on it finding that the domestic industry was in no position to produce or manufacture that product. It has also found that the production capacity of the domestic industry is not geared up to meet the demand for the said product. It is these reasons which have informed its decision to pass directions as contained in the impugned order. That determ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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