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TMI Blog2015 (8) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... r, after export the appellant lodged claim for refund seeking benefit under Notification No. 62/2007-Cus., dated 3-5-2007 whereby the concessional rate of duty at Rs. 300/- per M.T was allowed in respect of iron ore fines. The said claim was rejected by adjudicating authority and the rejection was upheld by Commissioner. The CESTAT has maintained the order of the Commissioner (Appeals). 3. Contention of the learned counsel for the appellant is that the order passed by the CESTAT on 28-3-2014 impugned before this Court is a non speaking order. It is contended that the appellant filed written submissions and explained the position to CESTAT. The averments or stand in those written submissions has been totally lost sight of leading to an erroneous or perverse finding. Learned counsel also states that thus there is a failure on the part of CESTAT to excise jurisdiction in the matter. 4. To rebut the preliminary objections to the maintainability of these appeals raised by learned counsel for the department, appellant has placed reliance upon a Division Bench judgment reported in 2010 (257) E.L.T. 523 = 2011 (21) S.T.R. 329 (Guj.) in the case of ''Anil Products Ltd. v Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be decided is about the tenability of these appeals. 8. With the assistance of the respective counsel, we have perused the impugned order as also the judgment delivered by CESTAT on 28-3-2014. Said judgment show that after taking note of the facts, the contentions of the appellant has been reproduced. The contention was that the refund claim has been rejected on the ground that assessment orders in respect of imported goods were never challenged. Appellant attempted to demonstrate before CESTAT that there was no order under section 17(5) of the Customs Act and, as such, they were justified in seeking refund. They relied upon the judgment of the Calcutta High Court in the case of ''Kothari Metals Ltd. v. Union of India'' reported in 2011 (274) E.L.T. 488. 9. CESTAT thereafter has noted the contention of the revenue that appellant/exporter had never challenged the assessment orders passed by the assessing officer and that the appellant had declared consignment as ROM and never declared it as iron ore fines. Revenue also pointed out Board Circular No. 14/2008 to it. 10. In the light of these contentions, CESTAT has applied its mind from para 9 of its judgment onwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protest and therefore, said observation of CESTAT is incorrect or perverse. 11. Learned counsel for the appellant has invited our attention to the written submissions filed before CESTAT on 4-4-2013, more particularly to para 10.1 therein. There, after referring to provisions of para 10(i) and (ii) of the public notice No. 14/2008 certain arguments are advanced. In order to demonstrate how the appellant is entitled to the benefit of concessional rate as per notification No. 62/2007, in that para appellant has mentioned that appellant exporter purchased the iron ore i.e. mixture of iron fines without segregation. They did not have screening facility for segregation of the iron in fines and lumps but because of huge demand from China on account of Olympics, the appellant was required to export the iron ore in its virgin form which was acceptable to the buyer, who could segregate the iron ore at their end by process of screening for benefaction. The appellant submitted before CESTAT in those written submission that they properly declared iron ore exported as comprising of 60% fines and 40% lumps and there were no mala fides involved. Submission is that as this argument has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are mentioned in paras 15 and 16 and then the above mentioned decision of Hon'ble Apex Court in case of Navin Chemicals (supra) finds mention in para 20. In paragraph 21 said Division Bench has found that following this decision of the Hon'ble Apex Court, Bombay High Court in case of Union of India v. Auto Ignition Ltd. = 2007 (213) E.L.T. 658 (Bom.) has ruled that wherever the dispute as to whether notification is applicable or not is raised, then the appeal would not be maintainable before High Court. In para 22, the Division bench has found that the term ''levy'' is wider in itself than the term ''assessment''. Levy may include ''imposition'' of tax as well as ''assessment''. Thus the Division Bench sustained the preliminary objection raised by the department and held that subject appeal was not maintainable before High Court. Very same view is reiterated by the Division Bench in the case of ''Asst. Collector of Central Excise v. National Tobbaco of India Ltd.'' (supra) [1978 (2) E.L.T. (J416) (S.C.) Relevant discussion is contained in paras 7 to 9 of the said judgment. 14. Counsel for the appellant has relied upon Madras High Court judgment in case of ''Penshibao Wang P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by CESTAT is a ''non speaking order''. The so called erroneous observation that the appellant had paid duly without any protest, is an observation on merits of the matter and it does not in any way enable the appellant to deviate from the scheme provided for in the Enactment. Said observation even if presumed to be incorrect, does not enable this Court to entertain the appeal as filed. Defect of this nature must be demonstrated to Hon'ble Court competent to entertain statutory appeal against it. 18. We are making these observations only to demonstrate that even if such finding is presumed to be perverse, on that ground appeal before Hon'ble Apex Court cannot be avoided. We are not, therefore, recording any conclusive finding on issue of payment of duty without protest or with protest as we do not have that jurisdiction in the present proceedings. But omission of CESTAT to consider some contentions or an erroneous finding on merit by it, docs not render its order ''a non-speaking'' one. 19. As we find the order passed by CESTAT to be reasoned, it is apparent that appeals as filed are not maintainable before this Court. Preliminary objection raised by the Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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