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2023 (10) TMI 325 - HC - CustomsMaintainability of petition before HC or SC - alternative remedy of appeal - appropriate jurisdiction to maintain appeal - rate of duty of customs - Section 130E(b) of the Customs Act, 1962 - HELD THAT - As would be evident from a conjoint reading of Section 130 and Section 130E, all appeals would lie to the High Court except where they relate to the determination of any question having a relation to the rate of duty of customs. While it is true that the exclusion of color coated coils in terms of the impugned order may have an inferential impact on the rate of duty that may liable to be imposed on those articles, we find that 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 bear in mind the well-settled principle of the extraordinary nature of the remedy which Article 226 constitutes and the self-imposed restraints which High Courts bear in mind when called upon to invoke their constitutional power - In the facts of the present case, it is found that the writ petitioners here would be well advised to pursue the remedy as constructed in terms of Section 130 since all questions that are raised with respect to the order of the CESTAT can very well be advanced in those proceedings. For the purpose of considering the applications for vacation of stay as moved, let these matters be called again on 10.11.2023 in the category of End of Board matters.
Issues Involved:
1. Maintainability of the writ petitions. 2. Jurisdiction of the High Court under Article 226 of the Constitution. 3. Applicability of Section 130 and Section 130E of the Customs Act, 1962. 4. Interpretation of the CESTAT's order and its impact on the rate of duty. Summary: 1. Maintainability of the Writ Petitions: The respondents raised a preliminary objection to the maintainability of the writ petitions, arguing that since the issues principally relate to the rate of duty of customs, the writ remedy is barred, and the petitioners must seek an appeal under Section 130E(b) of the Customs Act, 1962. The respondents contended that the CESTAT's order, which excluded color-coated aluminum coils from the Customs Notification dated 06 December 2021, falls within the ambit of a rate of duty. 2. Jurisdiction of the High Court under Article 226: The petitioners, represented by Mr. Chidambaram, argued that the nature of the adjudication by the CESTAT justifies invoking the High Court's jurisdiction under Article 226 of the Constitution. They contended that the issues do not fall within the ambit of Section 130E(b) and that neither Section 130 nor Section 130E fetters the extraordinary jurisdiction conferred upon the High Court by Article 226. 3. Applicability of Section 130 and Section 130E of the Customs Act, 1962: The Court noted that Section 130 excludes orders relating to the determination of any question having a relation to the rate of duty of customs, which is mirrored in Section 130E(b). The Supreme Court in Steel Authority of India Limited vs. Designated Authority explained that the determination of a rate of duty must have a "direct" and "proximate" relationship to the question of the rate of duty. 4. Interpretation of the CESTAT's Order and its Impact on the Rate of Duty: The Court examined the CESTAT's order and found that it does not have a "direct" or "proximate" relationship to the rate of duty. The CESTAT excluded color-coated coils from the notification based on the domestic industry's inability to produce or manufacture the product and its production capacity not meeting the demand. This determination does not meet the test of a real, direct, and proximate relationship to the rate of duty as enunciated by the Supreme Court. Conclusion: The Court rejected the preliminary objection raised by the respondents, noting that the writ petitioners would be well advised to pursue the remedy under Section 130 of the Act, as it provides an adequate and efficacious alternative remedy. The Court granted the petitioners the liberty to seek conversion of the writ petitions into appeals under Section 130 of the Act, keeping the question of conflict between a writ remedy and Section 130 or 130E(b) open for future consideration. The matter is scheduled for further consideration on 10.11.2023 for the applications for vacation of stay.
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