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TMI Blog2006 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal under Section 130 of the Act. In support of such contention, Mr. Basu relies upon the following decisions passed by different Courts while construing similar provisions contained in different statutes like those mentioned in Sections 129A and 130 of the Act: 1. State of Maharashtra v. Marwanjee P. Desai and Ors. ; 2. Punjab Paint, Colour and Varnish Works and Anr. v. Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and Anr. ; 3. Indotex Machinary Works v. Assistant Collector of Central Excise and Anr. ; 4. Maruti Udyog Ltd. v. Union of India ; 5. Commissioner of Income-tax and Anr. v. Income-tax Appellate Tribunal and Anr. ; 6. Munnal Lal and Sons v. Commissioner of Income-tax, U.P. reported in 1965 (LV) ITR 508; 7. Shaw Wallace and Co. Ltd. v. Income-tax Appellate Tribunal and Ors. ; 8. Tata Cummins Limited v. Commissioner of Customs (Appeals), CUSTA 1 of 2002 disposed of on March 2, 2006. 3. Mr. Chowdhury, the learned Counsel appearing on behalf of the appellant, has, however, seriously disputed the aforesaid preliminary objection raised by Mr. Basu and has contended that all the orders passed by the Tribunal in terms of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under Section 125, or (ii) in any disputed case, other than a case where 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 is in issue or is one of the points in issue, the difference in duty involved or the duty involved, or (iii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. (1A) Every appeal against any order of the nature referred to in the first proviso to Sub-section (1), which is pending immediately before the commencement of Section 40 of the Finance Act, 1984, before the Appellate Tribunal and any matter arising out of or concerned with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or matter under Section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section. (1B)(i) The Board may, by notification in the Official Gazette, constitute such committees as may be necessary for the purpose of this Act. (ii) Every committee constituted under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty levied by any officer of customs in the case to which the appeal relates is more than fifty lakh rupees ten thousand rupees: Provided that no such fee shall be payable in the case of an appeal referred to in Sub-section (2) or a memorandum of cross-examination referred to in Sub-section (4). (7) Every application made before the Appellate Tribunal, (a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees: Provided that no such fee shall be payable in the case of an application filed by or on behalf of the Commissioner of Customs under this Sub-section. Section 129B. Orders of Appellate Tribunal.(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 125, or (b) in any disputed case, other than a case where 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 is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (c) the amount of fine or penalty involved, does not exceed ten lakhs rupees. (5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority; but if the member are equally divided, they shall state the point or points on which they differ and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising out of the decision or order as may be specified by the Commissioner of Customs in his order. (3) The Committee of Chief Commissioners of Customs or the Commissioners of Customs, as the case may be, shall, where it is possible to do so, make order under Sub-section (1) or Sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under Sub-section (1) or Sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the Commissioners of Customs, makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 129A shall, so far as may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sub-section (5) of Section 129D for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit. (3) (a) No decision or order under this section shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity of making representation and if, he so desires, of being heard in his defence. (b) Where the Board or, as the case may be, the Commissioner of Customs is of the opinion that any duty has not been levied or has been short-levied or short-paid or erroneously refunded, no order requiring the affected person to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed under this section unless such person is given notice within the time limit specified in Section 28 to show cause against the proposed order. (4) No proceedings shall be initiated under Sub-section (1) or Sub-section (2) in respect of any decision or order after the expiry of a period of six months from the date of communication of such decision or order: Provided that in respect of any decision or order passed before the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd interest demanded, fine or penalty levied by an officer of customs in the case to which the application relates is one lakh rupees or less; (b) one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by an officer of customs in the case to which the application relates is more than one lakh rupees: Provided that no such fee shall be payable in the case of an application referred to in Sub-section (1A). (4) The Central Government may, of its own motion, annual or modify any order referred to in Sub-section (1). (5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section, (a) in any case in which an order passed under Section 128A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and (b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified. (6) Where the Central Government is of opinion that any duty of customs has not been levied or has been short-levied, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which (a) has not been determined by the Appellate Tribunal; or (b) has not been determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in Sub-section (1). (7) When an appeal has been filed befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dispensing with the deposit of the amount or refusing to do so, does not come within the exceptions mentioned in Section 130 of the Act and, therefore, any order either exercising discretion in favour of the appellant or against the appellant in the matter of deposit of the amount can be successfully challenged by way of an appeal under Section 130 of the Act provided substantial question of law is involved in such appeal. 10. We are unable to accept the contention of Mr. Basu that only the final order in terms of Section 129B of the Act can be challenged by way of an appeal under Section 130 of the Act. If that was the intention of the legislature, it would not have incorporated the phrase every order passed in appeal by the Appellate Tribunal not being an 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 the purpose of assessment in Section 130 of the Act. 11. The language employed in Section 130 of the Act makes it abundantly clear that it is not necessary that only the final order passed by the Tribunal should be appealable under Section 130 of the Act. 12. We now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier application was rejected. Since such questions not involved in this appeal, we refrain from making any comment on such question. The said decision, therefore, does not assist Mr. Basu's client. 15. In the case of Maruti Udyog Ltd. v. Union of India (supra), the Division Bench of the Delhi High Court was considering a writ application under Article 226 of the Constitution of India preferred against an order of the Tribunal passing a direction for deposit some amount in terms of Section 35F of the Central Excise Act, 1944. By relying upon the said decision, Mr. Basu wanted to impress upon us that a writ application is really maintainable against such order and according to him, if appeal was the appropriate remedy, the Delhi High Court would not have gone into the merit of such dispute. We are, however, of the view that the said decision had no occasion to consider the new Section 130 of the Act and as such, the said decision does not help us in resolving the dispute involved before us. 16. In the case of Commissioner of Income-tax and Anr. v. Income-tax Appellate Tribunal and Anr. (supra), the Andhra Pradesh High Court was considering a writ application challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy was no bar in entertaining a writ application under Article 226 of the Constitution of India. We are of the view that the said decision cannot have any application to the fact of the present case as in the said decision the learned Single Judge had no occasion to consider the scope of an appeal under Section 130 of the Customs Act. 19. For the self-same reason, we are of the opinion that the decision of the Allahabad High Court in the case of Collector of Central Excise reported in 1987 (32) ELT 642 cannot assist us in resolving dispute involved herein. 20. In the case of Tata Cummins Ltd. v. Commissioner of Customs, CUSTA 1 of 2002, disposed of by a judgment delivered by a Division Bench of this Court on March 2, 2006, the question before the Division Bench was whether an order passed by the Tribunal refusing to condone delay could be said to be one within the purview of Section 129B of the Act so as to maintain a reference under Section 130A of the Act as it stood earlier. While considering such question, the Division Bench held that such an order was amenable to reference under Section 130A of the Act. In our view, the said decision cannot be a guiding factor for con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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