2015 (3) TMI 728 - HC - Customs

Maintainability of appeal - Section 35G - whether the benefit of concessional rate of duty in terms of Notification No.20/99 - Cus. dated 28.2.1999 as amended by Notification No.139/99- Cus. dated 30.12.1999 is available to the assessee on import of crude sunflower oil and what will be the rate of duty that is payable by the respondent, but for the notification in question - Held that - 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 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. - appeal is not maintainable - Following decision of Commissioner of Central Excise v. JBF Industries Ltd. 2010 (12) TMI 437 - GUJARAT HIGH COURT - Decided against Revenue.

Summary

Issues:
- Challenge to Final Order No.869 of 2010 passed by the Customs, Excise and Service Tax Appellate Tribunal
- Granting of relief to the assessee without considering specific conditions in Notifications and Rules
- Dispute over the quantity of imported crude sunflower oil and availed concessional rate of duty
- Interpretation of Section 35G of the Central Excise Act regarding maintainability of appeal on the rate of duty or value of goods

Analysis:
1. The Department challenged the Final Order No.869 of 2010 passed by the Customs, Excise and Service Tax Appellate Tribunal, questioning the grant of relief to the assessee without considering conditions in Notifications and Rules. The dispute arose from the import of crude sunflower oil and availing concessional rate of duty during specific periods as per relevant Notifications. The Assistant Commissioner demanded differential duty based on the quantity in the ship ullage survey report, leading to appeals and subsequent orders by the Commissioner (Appeals) and the Tribunal.

2. The High Court analyzed the maintainability of the appeal under Section 35G of the Central Excise Act, which restricts appeals on issues related to the rate of duty or value of goods. Citing the Supreme Court's decision in Navin Chemicals case, the Court emphasized that questions directly related to the rate of duty or value of goods for assessment fall within the ambit of Section 35G. The Court also referred to a Gujarat High Court decision reinforcing the direct relationship between the applicability of notifications or circulars and the determination of the rate of duty for assessment purposes.

3. Considering the specific issue at hand regarding the benefit of concessional rate of duty on imported crude sunflower oil, the Court held that the appeal did not fall within the scope of Section 35G. The Court concluded that the question of the applicability of the notification directly related to the determination of the rate of duty for assessment purposes, making the appeal not maintainable before the High Court. Consequently, the Court dismissed the appeal, granting liberty to the Department to pursue the matter in the appropriate forum and refrained from delving into the merits of the questions of law raised for consideration.