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2015 (8) TMI 995 - HC - CustomsRetrospective Effect of Notification 28/2004 Determination of Rate of Duty Maintainability of appeal Respondent imported capital goods/plant and paid duty at concessional rate under Notification No. 28/97-Cus., However show-cause Notice for recovery of balance duty amount was issued on allegations that respondent failed to fulfill conditions of said Notification Tribunal vide impugned order upheld order of commissioner holding that condition for demand had been amended by Notification No. 29/2004-Cus., giving retrospective effect to said notification Held that - even if question was whether Notification No. 29/2004-Cus., could be given retrospective effect for purpose of fulfillment of export obligation, it had direct co-relation with rate of duty of Customs for purpose of assessment Thus, impugned order passed by Tribunal relates specifically to determination of questions having direct relation to rate of duty of Customs When order impugned as passed by Tribunal relates, inter alia, to determination of questions having relation to rate of duty of Customs, appeal was not maintainable in high court, instead could be maintained only before Supreme Court per clause (b) of Section 130E of Customs act, 1962 Therefore, preliminary objection of respondent upheld Decided against Revenue.
Issues Involved:
1. Retrospective effect of Notification No. 29/2004 for fulfillment of export obligation under Notification No. 28/97. 2. Maintainability of the appeal under Section 130(1) of the Customs Act, 1962. Issue-wise Detailed Analysis: 1. Retrospective Effect of Notification No. 29/2004: The appellant contended whether the amendment to Notification No. 28/97, dated 1-4-1997, by Notification No. 29/2004, dated 28-1-2004, can be given retrospective effect for fulfilling the export obligation required under the Original Notification No. 28/97. The Tribunal upheld the Commissioner (Appeals-I) decision that Notification No. 29/2004-Cus., dated 28-1-2004, was retrospectively applicable concerning the respondent's obligations under the EPCG license dated 31-7-1995. The respondent had obtained a certificate from DGFT confirming the fulfillment of the export obligation imposed by the EPCG license. Despite this, the Deputy Commissioner confirmed the duty demand of Rs. 1,02,32,963/- due to the respondent's alleged failure to fulfill the export obligation as per Notification No. 28/97-Cus., dated 1-4-1997. The Commissioner (Appeals-I) later allowed the respondent's appeal, giving retrospective effect to Notification No. 29/2004-Cus., dated 28-1-2004, and relied on Supreme Court decisions in GOI v. Indian Tobacco Association and Zile Singh v. State of Haryana. 2. Maintainability of the Appeal under Section 130(1) of the Customs Act, 1962: The respondent raised a preliminary objection regarding the maintainability of the appeal in the High Court, citing the exclusion provided in sub-section (1) of Section 130 of the Act. The respondent argued that the appeal should be directed to the Supreme Court under Section 130E of the Act, as the subject matter involved questions related to the rate of duty of Customs. The court examined the relevant legal provisions and precedents, including decisions in Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs, Laxmi Udyog v. Commissioner of Central Excise, and others. The court concluded that the essential question of whether Notification No. 29/2004-Cus., dated 28-1-2004, could be given retrospective effect for fulfilling the export obligation under the Original Notification No. 28/97-Cus., dated 1-4-1997, had a direct correlation with the rate of duty of Customs for assessment purposes. Hence, the appeal was not maintainable in the High Court and should be directed to the Supreme Court. Conclusion: The High Court upheld the preliminary objection raised by the respondent, determining that the appeal was not maintainable under Section 130(1) of the Customs Act, 1962, and should be directed to the Supreme Court per Section 130E of the Act. The appeal was dismissed accordingly, with no costs awarded.
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