2023 (4) TMI 722 - HC - Customs

Review application - Maintainability of application before Supreme Court - Classification of goods - decision of the Hon ble Supreme Court in COMMISSIONER OF CUSTOMS, BANGALORE-1 VERSUS M/S MOTOROLA INDIA LTD. 2019 (9) TMI 229 - SUPREME COURT where the Hon ble Supreme Court held that the case would not fall within the categories of cases which are to be dealt with by the Hon ble Supreme Court. HELD THAT - In terms of the above decision, if the case relates to determination of a question relating to classification of goods under the Tariff and whether or not they are covered by an exemption notification, it would fall within one of the categories of cases which have been entitled to give a special treatment of providing an appeal directly to the Hon ble Supreme Court. Admittedly, in the instant case, the stand of the department is that the goods dealt with by the respondent/assessee are not covered by the exemption notification. If that be so, the appeal is maintainable before the Hon ble Supreme Court. Furthermore, the facts in M/s. Motorola India Limited are slightly different from the facts of the case on hand. In the said decision the only question that was involved was whether the said assessee had violated the conditions of the exemption notification by not utilizing the imported material for manufacturing of the declared final product and, therefore, liable for payment of duty, interest and penalty. However, the distinguishing feature in the case on hand is that the department takes a stand that the goods dealt with by the respondent are not covered by exemption notification which was not the facts in the case of M/s. Motorola India Limited. Thus, we find that no grounds have been made to review the judgment and order of this court dated 7.3.2022. The review application stands dismissed.

Summary

Issues:
Review application filed by the revenue challenging a judgment and order in CUSTA/14/2021 dated 7.3.2022. Grounds raised include incorrect legal principle in the judgment, citing the decision of the Hon'ble Supreme Court in M/s. Asean Cableship Pte. Ltd. case and the case of Commissioner of Customs, Bengaluru Vs. M/s. Motorola India Limited. The review application argues that the judgment dated 7.3.2022 requires review based on these grounds.

Analysis:
The review application was filed by the revenue challenging a judgment and order in CUSTA/14/2021 dated 7.3.2022. The first ground raised was regarding the decision of the Hon'ble Supreme Court in the case of M/s. Asean Cableship Pte. Ltd., where the review applicant argued that the judgment of the High Court holding the appeal as maintainable did not lay down the correct legal principle. The revenue contended that the judgment needed review in light of this decision. Additionally, the revenue cited the case of Commissioner of Customs, Bengaluru Vs. M/s. Motorola India Limited, where the Supreme Court held that the case did not fall within the categories for a direct appeal to the Supreme Court.

The review application argued that the decision in the M/s. Asean Cableship Pte. Ltd. case was delivered after the judgment of the High Court, and therefore, the review application could not be entertained based on that decision. The legal principle laid down in the M/s. Motorola India Limited case was highlighted, emphasizing that only specific categories of cases are entitled to a direct appeal to the Supreme Court. The review application aimed to determine if the case at hand fell within any of those categories outlined by the Supreme Court in the M/s. Motorola India Limited case.

The review application contended that the case involved a question related to the classification of goods under the Tariff and whether or not they were covered by an exemption notification. It was argued that if the goods dealt with by the respondent were not covered by the exemption notification, the appeal would be maintainable before the Supreme Court. A comparison was drawn with the M/s. Motorola India Limited case, highlighting the distinguishing feature that in the present case, the department argued that the goods were not covered by the exemption notification, unlike in the M/s. Motorola India Limited case. As a result, the High Court found no grounds to review the judgment and order dated 7.3.2022.

In conclusion, the review application was dismissed, and upon furnishing a photocopy of the order dated 7.3.2022, the original certified copies of the orders passed by the tribunal and the High Court were to be returned to the advocate on record. An affidavit in reply filed in court was to be kept with the record.