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TMI Blog2019 (5) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be an order relating to determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment. The second limb is that if the order passed by the Appellate Tribunal is found to be an eligible order i.e. an order, which does not relate to determination as to the rate of duty or value of the goods, then an appeal can be entertained if the High Court is satisfied that the case involves a substantial question of law - Admittedly, the order impugned before us is an order relating to rate of duty of customs and therefore, against the order passed by the Tribunal, an appeal is not maintainable before this Court under Section 130 of the Act. Section 130E of the Act deals with appeal to Hon'ble Supreme Court. Clause (b) of Section 130E of the Act would be relevant for the purpose of this case and it states that 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 shall lie to the Hon'ble Supreme Court. Whether the order passed by the Tribunal can be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Whether the Tribunal was correct in ignoring the law that the events and causes to invoke the extended period of limitation enumerated under Clauses (a), (b) and of Section 28(4) of the Customs Act, 1962 are distinct, different and separate for recovery of duty short levied or short paid ? 3. Whether the Tribunal was justified in rejecting the invocation of extended period of limitation, when the respondent was undisputedly not entitled for the concessional rate of duty on import since 01.3.2011? 4. Whether the Tribunal ignored the law that the limitation for reckoning the 'relevant date' i.e. 'five years' is attracted only upon the satisfaction of ingredients envisaged under Sub- Section 28(4) and not from the date of knowledge by an officer of the Department ? 5. Whether the order of the Tribunal in reading into the enabling provision for recovery of duty short paid or short levied with regard to the knowledge of the Departmental Authority under Section 28(4) of the Customs Act, 1962 tantamount to rewriting the statutory provision in view of the law that the very Customs Act, 1962 defines and fixes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 17.3.2012 and on the reasonable belief that the consignment was liable to confiscation under Section 111(o) of the Act, the respective Bills of Entry were seized under Section 110 of the Act. Subsequently, the other Bills of Entry were also subjected to such examination and the matter was investigated further. A statement was recorded under Section 108 of the Act. The result of the investigation culminated in a show cause notice dated 26.8.2013. 8. The respondent assessee filed their reply and contested the proposal made in the said show cause notice. 9. The Commissioner of Customs, by Order-in-Original dated 13.2.2015, held that the motor cars declared as BMW cars in CKD.... in different Bills of Entry imported during the period from 01.3.2011 to 11.4.2013 by M/s.BMW India Private Limited, Chennai for manufacturing various models of BMW motor cars at their Chennai Plant as imports of 'motor car in CKD kit with engine and gearbox in pre-assembled condition.' Further, the assessee was denied the benefit of Notification No.21/2002-Cus dated 01.3.2002 as amended. The Adjudicating Authority confirmed the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, the imposition of penalty under Sections 114A and 112(a) of the Customs Act, 1962 as well as the imposition of redemption fine in lieu of confiscation under Section 125 of the Customs Act, 1962 is justified ? 11. So far as issue I (i) and (ii) is concerned, it was decided against the respondent herein assessee. Further, issues II and III were decided against the Revenue appellant herein. Consequently, the Tribunal, while upholding the demand, restricted it to the normal period of limitation and only for the purpose of re-quantification of the demand for the normal period with interest liability as applicable, the matter was remanded to the Adjudicating Authority. The penalty imposed under Section 114A of the Act was set aside. The confiscation of the goods under Section 111(m) and (o) of the Act was upheld. The redemption fine, which was imposed, was upheld. However, the redemption fine was reduced to ₹ 1 Crore. The imposition of penalty under Section 112(a) of the Act was upheld. However, the penalty was reduced to ₹ 1 Crore. 12. Being aggrieved by that portion of the order of the Tribunal, the respondent here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) the decision of the Division Bench of the Karnataka High Court in the case of Commissioner of Central Excise, Customs Service Tax Vs. Jindal South West Steel Ltd. [reported in (2011) 273 ELT 165]; (ii) the decision of the Division Bench of the Punjab and Haryana High Court in the case of Principal Commissioner of Central Excise Service Tax Vs. Raja Dyeing [reported in 2015 (5) GSTL 231]; and (iii) the decision of the Hon'ble Supreme Court in the case of Navin Chemicals Manufacturing Trading Co. Ltd. Vs. Collector of Customs [reported in (1993) 68 ELT 3]. 18. It is further submitted by the learned counsel for the respondent herein assessee that it would be well open to the appellant Revenue to file an appeal before the Hon'ble Supreme Court, but yet the appellant Revenue has to satisfy the Hon'ble Supreme Court that there exists a substantial question of law for consideration. In this regard, the learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. Vs. Designated Authority, Directorate General of Anti Dumping and Allied Duti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Supreme Court. Clause (b) of Section 130E of the Act would be relevant for the purpose of this case and it states that 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 shall lie to the Hon'ble Supreme Court. 24. Thus, the question would be as to whether the order passed by the Tribunal can be truncated and decided by two different courts at two different levels ? 25. The answer to the said question should be in the negative in the sense that an order passed by the Tribunal cannot be truncated and two courts cannot test the correctness of that order. 26. We support such a conclusion by referring to the decision cited before us by Mr.Rohan Shah, learned counsel appearing on behalf of the respondent herein assessee. An identical question arose for consideration in the decision in the case of Jindal South West Steel Ltd. The assessee therein approached the Hon'ble Supreme Court under Section 35L of the Central Excise Act, as the question was relating to the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal which deals with questions that fall within the ambit of Section 35L as well as other questions lies to the Supreme Court under Section 35L, the mere fact that the party chooses to challenge only that part of the order that falls within the ambit of Section 35G would make no difference. In other words, it cannot be said that the party that chooses to challenge the order of the Tribunal only so far as it relates to the determination of questions falling within the ambit of Section 35G must file the appeal before the High Court even though the order also deals with questions that fall within the ambit of Section 35L. In that event, if the other party files an appeal against the order of the Tribunal on issues that fall within the ambit of Section 35L in the Supreme Court, the very purpose of Section 35G of bringing the appeals either before the Supreme Court or before the High Court would be defeated. It can hardly be suggested that in that case, the appeal filed under Section 35G before the High Court ought to stand transferred to the Supreme Court. The scheme of the Act in general and Sections 35G and 35L in particular do not indicate such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant Revenue to approach the Hon'ble Supreme Court under Section 130E of the Act. 30. Mr.Rohan Shah, learned counsel appearing on behalf of the respondent, by referring to the decision of the Hon'ble Supreme Court in the case of Steel Authority of India Ltd., has contended that even before the Supreme Court, the Revenue has to establish that there is a substantial question of law involved in the matter and the question, which fell for consideration before the Hon'ble Supreme Court in the said case was to ascertain the true sweep and purport of the appellate power of the Apex Court under Section 130E(b) of the Act and while answering the said question, the Hon'ble Supreme Court pointed out that 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; the Companies Act, 2013, the National Green Tribunal Act, 2010, etc., expressly limit the appellate power of the Supreme Court to determination of substantial que ..... 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