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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 ..... segregation of mixture to arrive at quantity of fine for which concessional, was not possible, higher duty was to be charged – Thus, order passed by CESTAT was reasoned and accordingly upheld – Decided against Assesse. - Customs Appeal Nos. 3-4 of 2014 - - - Dated:- 23-9-2014 - B.P. Dharmadhikari and A.S. Gadkari, JJ. Shri H.K. Maingi with Rajiva Sirvastana, Advocates, for the Appellant. Shri C.A. Ferreira, Advocate, for the Respondent. JUDGMENT This appeal under Section 130 of the Customs Act, 1962 is field by an exporter challenging the order dated 28-3-2014 passed by the Customs, Excise Service Tax Appellate Tribunal, West-Zonal Bench at Mumbai (Court No. I) in Appeal Nos. C/76 123/2010 [2014 (309) E.L.T. 288 (Tri.-Mum.)]. The appeals before the CESTAT was arising out of order dated 30-10-2009 passed by Commissioner of Customs Central Excise (Appeals), Goa whereby said appellate authority upheld the adjudication order rejecting the refund claims filed by the present appellant. 2. Briefly stated, the facts show that the appellant exported on seven occasions ROM i.e. (mixture of iron ore lines and lumps). The appellant paid the normal customs duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gine Steel Co. Ltd. (supra) is unwarranted. He further contends that in case of Penshibao Wang (supra) decided by Madras High Court no objection was raised to the maintainability of the appeal. 6. He has invited the attention of this Court to the provisions of Sections 12, 14 of the Customs Act r/w Section 129D to buttress his contentions. He also draws support from the judgment of the Hon ble Apex Court reported in 1993 (68) E.L.T. 3 (S.C.) in the case of Navin Chemicals Mfg. Trading Co. Ltd. v. Collector of Customs to explain the scope of the phrase Relation thereto employed in Section 129D(5) as also Section 130(1). He points out that dispute raised in refund claim is about the classification of the commodity exported. A Division Bench judgment of this Court reported in 2009 (234) E.L.T. 220 (Bom.) = 2009 (13) S.T.R. 498 (Bom.) in the case of Commissioner of C. Ex., Nagpur v. Universal Ferro Allied Chemicals Ltd. and 2007 (213) E.L.T. 658 (Bom.) in the case of Sterlite Optical Technologies Ltd. v. Commissioner of C. Ex., Aurangabad is also relied upon by him to point out that in dispute of such a nature, the appeal as filed is not maintainable. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenged in the refund claim. It has relied upon the judgment cited by the revenue in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) delivered by the Hon ble Court for said purpose. 10. It then proceeded to consider the subsequent judgment of the Hon ble Apex Court in the case of Priya Blue Industries Ltd. v. CC (Preventive) reported at 2004 (172) E.L.T. 145 (S.C.). The interpretation therein put on the words in pursuance of an order of assessment in section 27 of the Customs Act has been then looked into and a conclusion has been reached that a claim for refund cannot be maintained in such circumstances, unless the order of the assessment has been modified. It has also looked into the judgment of Kolkata High Court in the case of Kothari Metals (supra) in para 13 and distinguished the same by pointing out that the above mentioned judgments of the Hon ble Apex Court were not pointed out to Kolkata High Court. Thereafter it also found that present appellant did not pay the duty under protest. The appellant before this Court has invited our attention to the letters given while paying duty on each occasion to demonstrate that in fact duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may require CESTAT to refer to the High Court any question of law arising out of an order under appeal before it provided it is not 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 purposes of assessment . It has also noted that as per section 130B Clause (b) an appeal shall lie to the Supreme Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for purposes of assessment . 13. In para 11, the Hon ble Apex Court has considered sub-section 5 of section 129D and held that expression used in said provision should to be interpreted similarly. The said expression is already mentioned by us supra. This judgment is followed by the Division Bench of this Court in case of Sterlite Optical Technologies Ltd. (supra). There noting intention of the parliament in its wisdom to provide appeal to the highest Court of land by incorporating section 35L this Court found appeal before High Court not maintainable. The arguments in defence raised by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng order. Because it found the impugned order to be non-speaking order the Division Bench of Gujarat High Court took cognizance of the appeal. 16. We have already briefly mentioned the impugned judgment deliver by CESTAT on 28-3-2014. In the said judgment CESTAT has found that the appellant before it i.e. the appellant before us themselves declared commodities as ROM and not as iron ore fines. It thereafter found that public notice No. 14/2011 contemplated segregation of a mixture to arrive at a quantity of fine for which a concessional rate was available and when segregation was not possible, the higher duty was to be charged. It also found that assessment order in case of present appellant was never challenged by it and it also relied on the judgment of the Hon ble Apex Court to conclude that such assessment order cannot be allowed to be challenged in refund claim. It found that unless and until such assessment order is modified, claim for refund cannot be entertained. It also distinguished the judgment of the Calcutta High Court in case of Kothari Metals Ltd. v. Union of India . (supra) 17. In the situation, we are not in a position to hold that said judgment passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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