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TMI Blog2017 (4) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of confidentiality nor from the alleged non-consideration of any of the grounds urged on behalf of the appellant. The tribunal further held that the Designated Authority had followed an acceptable method of determining the normal value of electrodes within China by comparing individual work undertaken by an exporter vis- -vis the export price imposed and that there was no infirmity in the matter of such determination. The findings recorded by the learned appellate tribunal on the basis of which the appeal of the present appellant has been dismissed are findings of fact arrived at on due consideration of all relevant materials on record - appeal dismissed by refusing admission - decided against appellant. - Civil Appeal No. 241 of 2017 - - - Dated:- 17-4-2017 - Ranjan Gogoi And Ashok Bhushan, JJ. JUDGMENT Ranjan Gogoi, J. 1. Order on the admission of this appeal has been kept pending to enable the Court to ascertain the true sweep and purport of the appellate power of this Court under Section 130E(b)of the Customs Act, 1962 (as amended). The language of the above provision of the Act having indicated a very broad and expansive appellate jurisdiction, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertified the case to be a fit one for appeal to the Supreme Court. Under Section 130E(b) against any order passed by the Appellate Tribunal 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, an appeal was also provided to the Supreme Court. Section 130F of the Customs Act, 1962 provided that the provisions of Civil Procedure Code, 1908 relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under Section 130 as they apply in the case of appeals from decrees of a High Court. 5. An amendment though not of any significant consequence, made in the year 1999 may also be noticed. The reference jurisdiction of the High Court under Section 130 which was to be exercised at the instance of the Appellate Tribunal was continued in respect of orders passed, under Section 129B, by the Appellate Tribunal on or before 1.7.1999. However, under Section 130A substituted by the Finance Act (No.27) of 1999 the Reference jurisdiction in respect of orders passed by the Appellate Tribunal on or after 1.7.1999 was to be exercised by the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as the National Tax Tribunal Act, 2005 has been invalidated by this Court in the case of Madras Bar Association Vs. Union of India and Another (2014) 10 SCC 1. Therefore, it is, the provisions of the Customs Act, 1962 as prevailing prior to the enactment of the National Tax Tribunal, 2005 which is presently holding the field. 10. What is required to be noticed at this stage is that under the Customs Act, 1962, (as amended), against an order of the appellate tribunal on a question not relating to duty or to classification of goods, an appeal lies to the High Court on a substantial question of law. A reference, again, on a question of law, may also be made to the High Court in respect of similar orders of the appellate tribunal (not relating to determination of duty or classification of goods) passed on or before 1.7.2003. At the same time, a direct appeal to the Supreme Court against an order of the appellate tribunal on a question relating to the rate of duty or classification of goods has also been provided for. No conditions, restrictions or limitations on the availability of the appellate remedy before the Supreme Court is envisaged in the main Section [130E(b)] tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 been wrongly 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 before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. Section 130 E . Appeal to Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect appeal lies to the Supreme Court against an order passed by the appellate tribunal relating to the question of duty or classification of goods [Section 130E(b)]. Section 130F has weathered all amendments and make the provisions of the Code of Civil Procedure relating to an appeal to the Supreme Court applicable to appeals under Section 130 of the Act. The question, therefore, would be whether the provisions of Section 130F would be applicable to both sets of appeals that may be filed before Supreme Court, namely, against orders of the High Court as well as those of the appellate tribunal. 13. The language used by the legislature in Section 130F of the Act prescribing the contours of the jurisdiction of the Supreme Court while hearing appeals either against the decision of the High Court in its appellate or reference jurisdiction or while hearing an appeal against the order of the appellate tribunal has been same and has remained unchanged throughout the legislative history of Chapter XV of the Act (dealing with appeals) commencing with the amendment brought about by the Finance Act of 1980. The provisions of the Civil Procedure Code 1908 relating to appeals to the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence need not detain the Court. Article 138 of the Constitution confers power on the Union Parliament to confer further jurisdiction in the Supreme Court with regard to any of the matters in the Union List or any matter as the Government of India and the Government of a State may by special agreement confer, subject to enactment of a law to such effect by the Union Parliament. It is under the provisions of Article 138 that the statutory power of appeal under different statutory regimes has been conferred on the Supreme Court of India. Article 138 of the Constitution could not and does not deal with the scope of the appellate power that a statutory enactment made by the Union Parliament may confer on the Supreme Court. Rather, it deals with the range of the subjects to which the jurisdiction of the Supreme Court may be extended/enlarged by Parliament. Therefore, while construing the extent of the appellate jurisdiction to be exercised by the Supreme Court under a statutory enactment, the role of the Supreme Court as envisaged by the Constitution cannot altogether be lost sight of particularly when different statutes like the Electricity Act, 2003; Companies Act 2013, National Green ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. The other is the decision of this Court in Collector of Customs, Bombay vs. Swastic Woollen (P) Ltd. and Ors. AIR 1988 SC 2176, where this Court had an occasion to deal with the ambit of the appellate power under Section 130E of the Customs Act. The following extract from the judgment in Swastic Woollen (supra) amply summarize the view of this Court on the above question and therefore would require to be extracted. 9. Whether a particular item and the particular goods in this case are wool wastes, should be so considered or not is primarily and essentially a question of fact. The decision of such a question of fact must be arrived at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority be it the Supreme Court or the High Court may have a different perspective of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied to the case of the parties before us to decide the primary question indicated at the outset of the present order, namely, whether this appeal deserves to be admitted. 21. The appellant which is a public sector undertaking is engaged in the manufacture of steel in the regular course of its business. The appellant uses graphite electrodes which it gets imported from China. Against such imports from China, on the basis of the final report of the Designated Authority acting under the Anti Dumping Rules, namely, the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Union of India by a Notification dated 13.02.2015 has imposed anti-dumping duty upon the import of graphite electrodes of all diameters from specific importers operating within the Republic of China for a period of five years. This Notification was challenged by the appellant before the appellate tribunal (CESTAT). On behalf of the appellant it was urged before the learned Tribunal that the Designated Authority had determined the normal value of graphite electrodes within China in an impermissible manner and that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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