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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 ..... rred 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 condition and temperature? B. Whether or not benefit of Notification No. 21/2002-Cus., dated 1-3-2002 as amended would have been granted to the respondents, ignoring the test report of the Chemical Examiner and the Chief Chemist of the Government and relying upon the test opinion of the private laboratory?" 3. Tax Appeal No. 40 of 2007, Tax Appeal No. 42 of 2007 and Tax Appeal No. 43 of 2007 have been preferred by the common appellant-Commissioner of Customs (Preventive), Jamnagar challenging the common judgment and order passed by the learned Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as "CESTAT") dated 5-6-2006 passed in Final Order Nos. A/569 to 571/WZB/2006/C-II (CSTB) passed in the matter of Appeal No. C/235-237/2006. 4. At the outset, it is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 22-9-2004 showed carotene value as 436.8 mg/kg. 6.2 Based upon the above, the proceedings were initiated against the importer by way of issuance of show cause notice proposing denial of benefit of Notification No. 21/2002-Cus., dated 1-3-2002 confiscation of the goods and imposition of penalty thereupon. That the Commissioner passed the order denying the benefits of concessional rate of duty as 65% basic custom duty in terms of the Notification and passed the adjudication order and confiscated the Crude Palm Oil imported by the importer with an option to reeder the same on payment of redemption fine. It is so imposed the penalty upon the importer and one M/s. General Foods under Section 112(1)(ii) of the Customs Act, 1962. That feeling aggrieved and dissatisfied with the order passed by the Commissioner, importers and others pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 No. 120/2003-Cus., dated 1-8-2003 and denied the benefit of concessional rate of duty to 65% from the 75%. It is submitted that therefore, the dispute is with respect to benefit of concessional rate of duty to 65% to 75% as per the Notification as well as value of subject goods for determination of the duty being tariff value. It is submitted that therefore, when the question involved is rate of duty, classification and value of goods for determining the duty, appeal shall be maintainable before the Hon'ble Supreme Court only. 7.2 It is submitted by Shri Raval, learned Senior Advocate for the respondent-importer that importer claims that the rate of duty with respect to subject goods would be 65% and according to the revenue the rate of duty applicable would be 75% and therefore, the dispute is with respect to rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is whether which reports are to be believed and considered. It is submitted that the question raised in the present appeal is whether the learned 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 condition and temperature. It is submitted that even the question of law raised while admitting the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Central Revenue Control Laboratory, 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%. 8.3 It is further submitted by Shri Oza, learned counsel for the department that therefore, from the aforesaid it cannot be said that the issue involved in the appeals is having relation to the rate of duty of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported 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 preliminary objection, the issues involved in the present appeals and the questions raised are required to be considered. 11. In the present case the importer imported consignments of the Crude Palm Oil which arrived at the port on 3-7-2004. The representative sample of imported Crude Palm Oil were drawn on board and thereafter the goods were discharged from the vessel. After discharge of the goods, representative samples were again drawn on 7-7-2004 and sent for test. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 condition and temperature? B. Whether or not benefit of Notification No. 21/2002-Cus., dated 1-3-2002 as amended would have been granted to the respondents, ignoring the test report of the Chemical Examiner and the Chief Chemist of the Government and relying upon the test opinion of the private laboratory?" 11.2 It is required to be noted that as such there is no dispute that if total carotenoid oil (as beta carotene) is found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 than not, are of importance not only to the importers who are parties thereto but also to many other importers who import or propose to import the same or similar goods. Since the decisions of CEGAT in such matters would have wide application they are, by the terms of the statute, to be rendered by Special Benches. The phrase 'relation to' is, ordinarily, of wide import but, in the context of its use in the said expression in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Limited (supra) the Division Bench has held that the grievance that the despite the various submissions and several judgments relied upon, the same not considered in true perspective, the Tax Appeals before this Court would be maintainable if the Court concentrated the above question only leaving question of classification. In the case of Chandubhau Shiroya (supra) the Division Bench of this Court has observed and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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