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2013 (1) TMI 127 - HC - CustomsMaintainability of the WRIT petition - Section 130E of the Customs Act - Whether writ petition at the hands of the Department be entertained, where appeal against order of CEGAT would be maintainable before the Apex Court u/s 130E Appeal against order of CEGAT in relation to rate of duty - Held that - We are not inclined to entertain this petition. Following the decision in case of RAJ KUMAR SHIVHARE (2010 (4) TMI 432 - SUPREME COURT) and GUWAHATI CARBON LTD. (2012 (11) TMI 885 - SUPREME COURT OF INDIA) disapproved the practice of entertaining a writ petition by the High Court when statutory appeal under section 35L of the Central Excise Act, 1944 lies before the Supreme court. In favour of assessee
Issues:
1. Maintainability of the writ petition against the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). 2. Interpretation of section 130E of the Customs Act, 1962 regarding appeal to the Supreme Court. 3. Applicability of a notification prescribing concessional rate of duty. 4. Jurisdiction of the High Court to entertain a writ petition when statutory appeal lies before the Supreme Court. Analysis: Issue 1: Maintainability of the writ petition The Commissioner of Customs filed a petition challenging the legality of the CEGAT judgment that allowed the respondent's appeals, deleting duty demands and penalties. The respondent argued that the appeal should be to the Supreme Court under section 130E of the Customs Act, making the writ petition not maintainable. The petitioner contended that the issue decided by CEGAT was not related to the rate of duty. The High Court examined the statutory provisions and previous judgments to determine the maintainability of the petition. Issue 2: Interpretation of section 130E of the Customs Act Section 130E of the Customs Act provides for an appeal to the Supreme Court against Tribunal judgments relating to the rate of duty of customs. The High Court analyzed the statutory provisions to ascertain the appeal jurisdiction under section 130E. It was crucial to determine if the decision of CEGAT in the present case allowed an appeal to the Apex Court and whether the writ petition should be entertained. Issue 3: Applicability of a notification prescribing concessional rate of duty The CEGAT judgment addressed the applicability of a notification prescribing a concessional rate of duty. The High Court referred to a previous case where it was held that issues related to notifications impacting the rate of duty fall under the jurisdiction of the Apex Court. The Court examined the CEGAT's decision on the notification and its relation to the rate of duty to determine the maintainability of the appeal. Issue 4: Jurisdiction of the High Court The High Court considered recent judgments emphasizing that statutory appeals should be exhausted before resorting to writ petitions. It cited cases where the Apex Court disapproved of entertaining writ petitions when statutory appeals were available. The Court highlighted that in cases where the appeal lies before the Apex Court, the High Court lacks jurisdiction to entertain the writ petition. Therefore, in the present case, the High Court upheld the objection of maintainability, leading to the dismissal of the petition on this ground.
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