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TMI Blog1984 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... he transfer of appeal to Calcutta and the Hon ble President had transferred the appeal to the Last Regional Bench, Calcutta vide his order dated 25th May, 1980. 2. At the outset of the proceedings, Shri A.K. Chatterjee the learned Junior Departmental Representative has raised a preliminary objection that in the instant case, rate of duty is involved and this Court has got no jurisdiction to decide this appeal by virtue of the provisions of sub-section (3) of Section 129C of the Customs Act, 1962. The learned Junior Departmental Representative has referred to para No. 3 of the order-in-original passed by the learned Assistant Collector of Customs, New Delhi. The same is reproduced as under: 3. E.C.G. Machine, though portable, is also not admissible as a professional equipment to a Surgeon. Further Notification No. 18, dated 7-1-1978 is no more operative in view of the fact that that goods under import were shipped 11-10-1978 i.e. after the said notification had been rescinded. The import of these instruments are, however, permissible without an I.T.C. licence under the provisions contained in Para 120 of Handbook of import and Exports Procedure, 1978-79. Accordingly, the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than three members and shall include at least one judicial member and one technical member. A simple reading of sub-section (3) of Section 129C clearly shows that every appeal against the decision or order relating among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than three members and shall include one judicial member and one technical member. When an assessee claims that he is entitled to the benefit of a particular rule and in interpreting the applicability of the said rule, an assessee becomes entitled to be exempted from the purview of the Customs duty. Undoubtedly it amounts to assessment at nil rate of duty. The intention of the legislature in sub-section (3) of Section 129C of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain a dispute and erroneously proceeds to determine the rights of the parties, no amount of consent or acquiescence of the parties themselves will create the jurisdiction in the said Court or authority and the inherent lack of jurisdiction in the said authority will not in any way be cured or supplied on account of the act of the parties themselves . The scheme of the act in the Customs, Excise and Gold (Control) Appellate Tribunal is very peculiar in its own way. Under the Income-tax Act, 1961, a reference lies to the High Court under Section 256(1) and 256(2) of the Income-tax Act, 1961, in respect of the orders passed by the Income Tax Appellate Tribunal, whereas in the case of Customs, Excise and Gold (Control) Appellate Tribunal where an order has been passed by the regional Bench of the Tribunal, a reference application lies to the High Court under Section 130 of the Customs Act, 1962 and to the Supreme Court under Section 130A of the Customs Act, 1962. Under Section 130E of the Customs Act, 1962, the appeal lies to the Supreme Court. Section 130E of the Customs Act, 1962 is reproduced as under : 130 E. Appeal to Supreme Court. - An Appeal shall lie to the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1984 has held that Special Bench has got all India jurisdiction. During the course of arguments, the learned Authorised Representative for the respondent had pleaded that they have got no objection if this Court exercise its jurisdiction in deciding this appeal. There is no question of waiver where there is inherent jurisdiction because in such a case, it will be nullity in the eyes of law. Order No. 2 of 1982 passed by the Hon ble President, Customs, Excise and Gold (Control) Appellate Tribunal also clearly lays down that where rate of duty is involved, it has to be dealt with by the Special Bench. The same is reproduced as under : Four Special Benches shall be located at New Delhi, and shall deal with matters relating, among other things, to the rate of duty of customs or of excise (hereinafter referred to as classification) or to the value of goods for purposes of assessment of duty of customs or of excise (hereinafter referred to as valuation). I would also like to refer a judgment of the Special Bench in the case of M/s. Malwa Vanaspati and Chemicals Co. Ltd., Indore v. Collector of Central Excise, Nagpur, reported in 1983 E.L.T. 1004 = 1983 ECR 1273D. I would like to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption or concession notification, it would necessarily affect the rate and, therefore, the question would be in relation to the rate of duty. Therefore, I cannot be a party to my brother s view-point that the jurisdiction of the case did not vest but a chance factor brought the case before the Special Bench. In the instant case, the appellant has made a claim of Transfer of Residence, under Transfer of Residence Rules, 1978. Relevant portion of Transfer of Residence Rules, 1978 is reproduced as under Allowance for professional equipment etc.-In addition to articles allowed under rule 2 and subject to the time-limit mentioned in Cl. (c) of the rule a highly qualified scientist, technologist, doctor or engineer, returning to India for permanent settlement after a stay abroad for a minimum period of two years, may also be allowed to import free of duty such equipment, instruments, apparatus and appliances, up to a value of thirty thousand rupees as are ordinarily required by him in his profession. Explanation. - For the purpose of this rule, a highly qualified scientist, technologist, doctor or engineer is a person who holds a post-graduate degree or its equivalent in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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