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TMI Blog2014 (12) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 in Tax Appeal Nos. 40, 43 & 42 of 2007 - - - Dated:- 25-7-2014 - M.R. Shah and Sonia Gokani, JJ. Shri G.L. Raval, Sr. Counsel with Dipen Desai, Advocate, for the Assessee. Shri R.J. Oza, SSC and Abhijit P. Joshi, for the Department. JUDGMENT Tax Appeal No. 1270 of 2006, Tax Appeal No. 1271 of 2006 and Tax Appeal No. 1272 of 2006 have been preferred by the common appellant-Commissioner of Customs (Preventive), Jamnagar challenging the impugned common judgment and order passed by the learned Customs, Excise Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ) dated 4-4-2006 passed in Appeal Nos. A/314 to 316/WZB/ 2006-C-II (CSTB) [2006 (206) E.L.T. 827 (Tribunal)]. 2. At the outset, it is required to be noted that all these aforesaid appeals are admitted by this Court to consider following substantial question of law. A. Whether or not Tribunal has erred in relying upon the report of the private Laboratory in holding that carotene content in Crude Palm Oil will be reduced by passage of time, whereas CRCL, New Delhi informed that the Standard Technical Literature do not find mention about the degradation/reduction of carotenoid con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carrying the subject goods arrived at Kandla Port sample was taken from subject goods on board the vessel. That the samples were sent for testing to know the contents of the carotene value. Initially the test was conducted in Customs Lab at Kandla. According to the respondent-importer, result of the sample were drawn on board on 3-7-2004 and from shore tank on 7-7-2004 showed caroteniod as 580.5 mg/kg and 791.7 mg/kg respectively. According to the importer, similarly chemical results revealed from Customs and Central Excise Lab at Vadodara showed beta carotene contents in the sample drawn on board and from shore tanks as 606 mg/kg and 801 mg/kg respectively. Thereafter, based on some intelligence report Revenue Authority/Commissioner of Customs (Preventive), Jamnagar had some doubt with respect to contents of carotene value in CPO as mentioned in the report, revenue again drew samples of the subject goods lying in the shore tank on 3-8-2004. The test report dated 10-8-2004 issued by the Customs Lab at Kandla in respect of these samples revealed the caroteniod s value as 436.65 mg/kg. The samples were sent for testing to CRCL, New Delhi and CRCL, New Delhi vide its report dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd order passed by the learned CESTAT. 7.1 It is submitted by Shri Raval, learned Senior Advocate for the importer that as the question involved in the decision of the Tribunal relates to availing the benefit of notification, resulting rate of duty and value of goods for determination of duty, against the impugned judgment and order of the learned CESTAT, the appeal would not lie to the High Court and appeal would lie before the Hon ble Supreme Court under Section 130E of the Customs Act, 1962. It is submitted that after the impugned judgment and order passed by the learned CESTAT again in the case of very importer, on the same issue learned CESTAT delivered the judgment and the revenue challenge the said decision before the High Court of Karnataka at Bangalore and Hon ble High Court of Karnataka has held that appeal before the High Court would not be maintainable and appeal before the Hon ble Supreme Court under Section 130(E) of the Act would be maintainable and consequently High Court dismissed the said appeal. It is submitted that in the present case also the respondents-importers have been denied the benefit of Notification No. 21/2002-Cus., dated 1-3-2002 and Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 (S.C.) 4. 2002 (142) E.L.T. 292 (Bom.) 5. 2002 (145) E.L.T. 515 (Bom.) 6. 2009 (242) E.L.T. 330 (P H) 7. 2013 (295) E.L.T. 678 (Guj.) 8. Unreported decision of this Court dated 16-8-2012 passed in Tax Appeal No. 1054 of 2006 [since reported in 2013 (294) E.L.T. A137 (Guj.)]. 7.6 Making above submissions and relying upon the above decisions, it is requested to dismiss the present appeals by holding against the impugned judgment and order passed by the learned CESTAT, appeals would not be maintainable before this High Court and the Appeals should be maintainable before the Hon ble Supreme Court. 8. Shri R.J. Oza, learned Senior Advocate has appeared on behalf of department. He has made elaborate submissions on the preliminary objection raised by the learned advocate appearing on behalf of the importer and in support of his submissions that the present appeals filed by the department before this Court would be maintainable under Section 130 of the Customs Act, 1962. 8.1 Shri Oza, learned counsel appearing on behalf of the department-appellant has vehemently submitted that as such the issue/question involved in the present appeals i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result of the samples drawn on board on 3-7-2004 and from shore tanks on 7-7-2004 showed the carotenoid as 580.5 mg/kg and 791.7 mg/kg respectively. It is submitted that as such based on some intelligence report Revenue Authorities again drew the samples of the goods lying in the shore tanks on 3-8-2004 and the test report dated 10-8-2004 issued by the Customs Laboratory at Kandla in respect of these samples revealed the carotenoid s value as 436.65 mg/kg and therefore, it was believed that beta carotene contents being less than 500 in terms of the above test report, the consignment of Crude Palm Oil was not entitled to the benefit. It is further submitted that even according to the department the remnant of the samples drawn were subsequently sent to Central Revenue Control Laboratory, New Delhi and the result dated 22-9-2004 showed carotenoid contents as 436.8 mg/kg. It is submitted that according to the importer the content of carotenoid was between 500-2500 mg/kg i.e. 580.5 mg/kg and 791.7 mg/kg respectively and therefore, they are entitled to benefit of the notification direction concessional rate of basic custom duty of 65%. On the other hand, relying upon the report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Limited, reported in (2009) 9 SCC 70. (4) Commissioner of C. Ex. Delhi-IV v. Orient Steel Industries, reported in 2010 (254) E.L.T. 630 (P H). (5) Commissioner of Customs, Tuticorin v. Edhayam Frozen Foods, reported in 2008 (230) E.L.T. 225 (Mad.). (6) Anil Products Limited v. Commissioner of C. Ex., Ahmedabad-II, reported in 2010 (257) E.L.T. 523 (Guj.) = 2011 (21) S.T.R. 329 (Guj.). (7) Commissioner of Central Excise Customs v. Chandubhau Shiroya, reported in 2009 (234) E.L.T. 24 (Guj.). 8.6 Making above submissions and relying upon the above decisions, it is requested to hold that the present appeals preferred by the department under Section 130 of the Customs Act, against the impugned judgment and order passed by the learned Tribunal would be maintainable before this Court. 9. Heard the learned advocates for the respective parties at length on the preliminary objection raised by the learned counsel for the importer with respect to maintainability of the present appeals under Section 130 of the Customs Act against the impugned judgment and order passed by the learned Tribunal before this Court. 10. While considering the aforesaid preli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory, New Delhi and Laboratory at Kandla on the basis of samples drawn all the goods lying in the shore tank on 3-8-2004 the contents of carotenoid is found less than 500 i.e. 436.65 mg/kg and therefore, importer is not entitled to benefit of the notification of directing concessional rate of basic duty and therefore, they are liable to pay higher rate of custom duty of 75%. 11.1 That by impugned judgment and order, the learned Tribunal has relied upon the report of the private Laboratory in holding that the carotenoid content in Crude Palm Oil will be reduced by passage of time and has not relied upon the report of CRC, New Delhi which revealed the carotenoid s value as 436.65 mg/kg. While admitting the present appeals, this Court has framed the following substantial question of law. A. Whether or not Tribunal has erred in relying upon the report of the private Laboratory in holding that carotene content in Crude Palm Oil will be reduced by passage of time, whereas CRCL, New Delhi informed that the Standard Technical Literature do not find mention about the degradation/reduction of carotenoid content (as beta carotene) due to passage of time, change in atmosphere conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to the rate of duty of customs or to the value of goods for the purposes of assessment as mentioned in Section 129 of the Customs Act. The Hon ble Supreme Court in the case of Navin Chemicals Mfg. Trading Co. Ltd. (supra) has observed in para 7 as under : 7. The controversy, therefore, relates to the meaning to be given to the expression determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment . It seems to us that the key lies in the words for purposes of assessment therein. Where the appeal involves the determination of any question that has a relation to the rate of customs duty for the purposes of assessment that appeal must be heard by a Special Bench. Similarly, where the appeal involves the determination of any question that has a relation to the value of goods for the purposes of assessment, that appeal must be heard by a Special Bench. Cases that relate to the rate of customs duty for the purposes of assessment and which relate to the value of goods for the purposes of assessment are advised treated separately and placed before Special Benches for decision because they, more often th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer the value of the subject goods for determination of the duty being tariff value fixed is US$ 504 PMT and therefore, the said question would be with respect to value of the goods for the purpose of assessment and therefore, the appeals before this Court under Section 130 of the Customs Act would not be maintainable also seems to be attractive but has no substance. All the aforesaid questions are as such not arising directly. As stated above, the main issue is with respect to percentage of 65% in the imported goods Crude Palm Oil and which report should be considered and believed. Under the circumstance, none of the decisions relied upon by the learned counsel appearing on behalf of the importer would be of any assistance to the importer and/or would be applicable to the facts of the case on hand. 14.1 It is also required to be noted that it is the specific case on behalf of the department that impugned order passed by the Tribunal is a non-speaking and unreasoned order. The aforesaid question is certainly required to be considered in the appeals and the aforesaid cannot be said to be any question related to the duty and/or classification. In the case of Anil Products Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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