9911796707
TMI Blog1984 (2) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 1-1-80, claiming appropriate classification as a Miscellaneous Chemical under Chapter 38 [heading No. 38.01/58 (i)] rather than under Chapter 48 [heading No. 48 0l/ 21 (1)] of the C.T.A., 1975 and consequential refund of duty collected in excess in a sum of ₹ 2,949.56, was rejected on the ground of bar of Limitation prescribed under Section 27 of the Customs Act, 1962; (d) an Appeal in which it was claimed that the assessment was erroneous and cannot be sustained and the payment of the assessed duty was under protest was dismissed on the ground that there was nothing to indicate payment under protest and the consequential claim for refund was, accordingly, barred by Limitation; a Revision Application filed against the aforesaid order in Appeal was transferred to the Tribunal, heard as an Appeal and dismissed again on the ground of bar of Limitation by the aforesaid order-now the subject matter of the instant Reference Application. 3. It may be observed that similar Reference Applications Nos. 29/83-B and 1034/83-B were rejected as incompetent and not maintainable in the B Bench of this Tribunal by their Orders Nos. 8/1984-B and B-842/1983 respectively. 4. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or value for purposes of assessment, unless the order deals with the said issues and determines either the rate of duty or value for purposes of assessment, a Reference Application under Sec. 130 of the Act is not barred; (f) in the instant case, none of the orders right from adjudication to the Tribunal had even dealt with either the question of rate of duty or value for purposes of assessment; (g) the reliance by the Tribunal in their Order No. 8/1984-B aforesaid on AIR. 1961 S.C. 1633 (C.I.T. Bombay v. India Steam Navigation Co. Ltd.) is misplaced, seeing that the words and expressions that fell to be construed were any question of law arising out of the Tribunal s order (occurring in Sec. 66 of the Income-tax Act, 1922, identical with Sec. 256 of the Income-tax Act, 1961, as well as the latter part of Sec. 130 of the Customs Act, 1962) rather than the words relating to the determination.... in the earlier part of Sec.l30 of the Customs Act.l962.In fact, the said decision is of no help in construing the expression order relating .... to the determination ; (h) accordingly, a Reference Application lies and is maintainable, in this case; (i) the Tribunal woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne other words of like import in the self same statute and if it is found that a number of such expressions have been subjected to limitations and qualifications of an identical nature, that circumstance is a strong argument for subjecting the expression in dispute to a like limitation or qualification; (b) it hardly requires to be stated that the subject matter of the Act is the levy, assessment and collection of duties of Customs. Needless to say that the object and policy of a fiscal enactment is to ensure that there should, to the extent possible, be no room for doubt or dispute in the extent and the objects of levy, or the assessment or quantification of duty, so that the tax lawfully due is collected and recovered with a degree of certainly and finality expeditiously While it is obligatory to ensure sufficient safeguards for resolution of such doubts or disputes that may still arise in the interpretation and application of tax laws judicially so as to eliminate arbitrary or illegal executions, it, obviously, cannot be the policy to provide concurrent and multiple parallel remedies in a plurality of forums regardless of the resultant dilatoriness in reaching a final decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) in the latter class of cases it is only questions of law that may arise that may be referred to the High Court for advice in the exercise of its special jurisdiction created under the relevant Act. [defined in Sec. 131(b) of the Act]. An appeal to the Supreme Court is provided against the decision of the High Court on such questions of law only if the High Court certifies the case to be fit [Section 130.E (a)], (iii) obviously, the right to approach the Supreme Court in cases that do not involve a determination of the rate of duty or value for assessment is confined and restricted to questions of law and that too on a certificate of fitness, while in the cases involving the aforesaid issues it is a regular right of Appeal straightaway to the Supreme Court on fact as well Law; (g) it is the aforesaid legislative intent that is effectuated in and governs an appropriate construction of the aforesaid provisions; (h) it will be observed that, amongst the provisions cited in (d) supra, - (i) while Sections 129-C (4) (b), 131-B (2) (b) and the second proviso to Section 129-A (1) speak of a case where the determination of any question having a relation to the rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of Section 129-C in demarcating the jurisdiction of the Benches of the Tribunal and yet laid down criteria altogether different from each other? Is it possible to read both the aforesaid clauses literally and conclude that it is the order determining the rate of duty or valuation for assessment in one case and the issues in the case itself, regardless of whether the order dealt with them or not, in the other that determines which Bench of the Tribunal is to hear and decide the Appeal? Is it not odd and irrational to fix upon the nature of the order in one case and the case itself, regardless of the order in the other as the decisive factor to determine jurisdiction? Above all, does such a construction advance the objects of the legislation? If it does not, is it possible to read Sections 129-C (3), 130(1) and 130E (b) more in consonance with the other three provisions almost, in pari materia, so as to advance the objects of the legislation? (k) (i) an order made by any judicial tribunal is on the case before it. It does not exist in the void being one, necessarily, made in relation to the case decided by the Tribunal. It may be that the case could be decided on a preliminar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision and the other on the lexicon. We are not concerned with a Constitutional provision in this case. Even if it were, it is not irrelevant to point out that in that very case the expression relating to was interpreted by the other three learned judges to mean nothing more than - stand in some relation, to have bearing or concern, to pertain, to refer, to bring into association with or connection with (Justice Mitter at p. 142 of the report) to bring into relation or establish relation between . (Justice Hegde, at page 187) and bring a thing or person in relation to one another, to connect, establish a relation between, to have reference to, to be related, having relation to, and to stand in some relation to another thing . (Justice Ray as he then was at page 213); (iii) the preceding extracts should suffice to establish demonstrably that it was not the interpretation of the majority that the expression relating to meant the dominant theme or purpose . According to the majority, it meant merely stand in some relation , concern or refer , to bring into relation establish a relation between . Secondly the narrower meaning was resorted to by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have held and erred in not holding that the Applicant s letter dated 21-2-79 addressed to Member, CBEC with a copy to the Collector of Customs, Calcutta constitutes a general protest against the purported classification of Film Laminate as Paper and all subsequent payment of duty on importation of the said article should be deemed to have been paid under protest . 4. Whether the learned Tribunal should have held and erred in law in not holding that inasmuch as the applicant had raised objection against classification of the film laminate under Entry 48 of ICT- 1975 from its very inception and lodged general protest against levy of customs duty on the said film laminate as paper, the claim bill dated January 1, 1980 falls well within the proviso to sub-section (1) of Section 27 of the Customs Act for the purpose of special limitation. 5. Whether in determining the questions of limitation u/s 27 of the Act, it was incumbent upon the learned Tribunal to take into account the vital facts that the appellant all through raised objection against the purported classification of film laminate as paper, paid duty as assessed by the department under protest since the department purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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