2013 (2) TMI 258 - HC - Customs

Notification NO. 1/2009 dated 2 January 2009 challenged - an appeal would lie against the order passed by the CESTAT under Section 9C of the Customs Tariff Act, 1975 or 9A(8) - Held that - No merit in the submissions which have been urged on behalf of the Petitioners. The Court is bound to adopt a plain and literal meaning of the words which have been used by Parliament in Section 9A(8) of the Customs Tariff Act, 1975. The statutory provision specifically incorporates all the provisions of the Customs Act, 1962 relating to appeal as far as may be, in their application to the duty chargeable under Section 9A. 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 130E 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 9A(8) of the Customs Tariff Act, 1975 and must, therefore, necessarily apply in a manner that would make the appellate provision intelligible and workable. It would not be appropriate for this Court to exercise the jurisdiction under Article 226 of the Constitution, having regard to an alternate remedy by way of an appeal which is available in accordance with law.

Summary

Issues:
Challenge to order passed by CESTAT upholding anti-dumping duty notification. Preliminary objection on maintainability of petition due to appeal provision under Customs Tariff Act, 1975.

Analysis:
The petition was filed to challenge an order by CESTAT upholding an anti-dumping duty notification on Acrylonitrile Butadiene Rubber from Korea and Germany. The appeal was made under Section 9C of the Customs Tariff Act, 1975. A preliminary objection was raised on the maintainability of the petition, arguing that an appeal could be filed under the Customs Tariff Act, 1975. Section 9A(1) of the Act allows the Central Government to impose anti-dumping duty, and Section 9C(1) provides for appeals to the Tribunal. Section 9A(8) makes the provisions of the Customs Act, 1962 applicable to duties under Section 9A. Appeals to the High Court and Supreme Court are provided under Sections 130 and 130E respectively for orders passed by the Tribunal.

The Court rejected the argument that the appeal provision should be read in conjunction with other sections like 129A. It emphasized the plain and literal meaning of Section 9A(8) which incorporates appeal provisions from the Customs Act, 1962. The Court highlighted that appeals to the High Court and Supreme Court are available for determinations made by the Tribunal. The provisions of the Customs Act, 1962, including appeals, are deemed applicable to duties under Section 9A to ensure a coherent appellate process. The Court dismissed the contention that appeals could only be made after a final notification, stating that such a restriction was not legislated by Parliament.

Ultimately, the Court held that the petition was not maintainable under Article 226 of the Constitution due to the availability of an alternate appellate remedy as per the law. The petition was dismissed, allowing the Petitioners to pursue the appellate remedy. No costs were awarded in the judgment.