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TMI Blog2021 (10) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... rement of such goods or within such extended period not exceeding one year, vis- -vis Clause 6(1) and 6(4) of the Notification No.53/1997. The appeal under Section 130 of the Act before this Court would not be maintainable and the appellant/revenue has to pursue its grievance by filing an appeal under Section 130E of the Act before the Hon ble Apex Court - the appeal filed under Section 130 of the Act is held to be not maintainable. Appeal dismissed. - C.S.T.A.No.8/2018 - - - Dated:- 23-9-2021 - HON BLE MRS.JUSTICE S. SUJATHA AND HON BLE MR. JUSTICE RAVI V. HOSMANI APPELLANT (BY SRI AMIT ANAND DESHPANDE, ADV.) RESPONDENT (BY SRI RAVI RAGHAVAN, ADV. A/W SRI ROHAN KARIA, ADV.) J U D G M E N T S. SUJATHA, J., This appeal is filed by the Revenue under Section 130 of the Customs Act, 1962 ( Act for short) against the order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore ( Tribunal for short) passed in Final Order No.20072/2018 dated 06.02.2018. 2. The respondent - assessee is a 100% EOU holder set up by LOP No.PER/285919970/EOA/341/97 dated 06.10.1997. The respondent was procuring imported/indigenous cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort). Being aggrieved, the respondent - assessee approached the Tribunal. The Tribunal on adjudicating of the matter held that duty is not payable on imported capital goods for failure to fulfill export obligation, by referring to the judgment in the case of M/s. Hindustan Agrigenetics Ltd., vs. CCE vide Final Order No.960- 961/2010 dated 20.05.2010. The respondent has agreed to pay duty on raw material. No findings were recorded on penalty and confiscation order. 4. Miscellaneous Application filed by the respondent before the Tribunal for clarifying on the penalty aspect having been turned down, the respondent filed an appeal before this Court in CSTA No.10/2018, which came to be allowed directing the Tribunal to pass the appropriate orders, pursuant to which the Tribunal has passed the Miscellaneous Order on 17.12.2019 holding that once the demand of duty has been set aside in relation to capital goods, the question of imposition of penalty under Section 112(a) of the Act does not arise and upheld the penalty of ₹ 5,00,000/- imposed under Rule 173Q of the Rules, 1944 read with Rule 25 of the Rules, 2001 and Rule 25 of the Rules, 2002. 5. Being aggrieved, the revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act and not by the High Court in an appeal preferred under Section 130 of the Customs Act, 1962. The relevant paragraph of the said judgment is quoted hereunder: 15. This Court in the case of Steel Authority (supra), after considering the earlier judgments of this Court, carved out certain conditions which are required to be satisfied before admitting an appeal under Section 130E of the Customs Act. It will be apposite to refer to paragraphs 21 and 22 of the said judgment. Paragraphs 21 and 22 read thus: 21. On the basis of the discussion that has preceded, it must therefore be held that before admitting an appeal under Section 130-E(b) of the Customs Act, the following conditions must be satisfied: (i) The question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the assessment of duty. This is a sine qua non for the admission pf the appeal before this Court under Section 130-E(b) of the Act. (ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available. 7. In the case of the Commissioner of Central Excise and Service Tax, Bengaluru Vs. M/s. L and T Komatsu Ltd., in CEA No.67/2016 2020-TIOL-1156- HC-KAR-CX dated 19.03.2020 , the Coordinate Bench of this Court after considering the judgment of the Hon ble Apex Court in M/s. Motorola India Ltd., supra , vis- -vis Section 130(1) of Customs Act, 1962 and 35G of the Central Excise Act, 1944 has held thus: 10. The aforesaid authoritative principles by the Hon ble Apex Court in the MOTOROLA s case referred to supra extracted herein above would clearly indicate that if order of the Appellate Tribunal would go beyond inter-se disputes between the parties and may effect large number of cases, such an issue would partake the character of one of General public importance. Comparative analysis of Section 35G and 35L of the Central Excise Act would indicate they are mutually exclusive. Therefore, dispute which would be in the domain of Section 35L cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing them as above within the said period. Clause 6(iv) provides that in the case of raw materials .............(other than capital goods) procured duty free, duty can be levied if the unit fails to achieve Net Foreign Exchange Earning as a percentage of Exports (NFEP) and Export Performance (EP) as specified in Appendix 1 of the Exim Policy within one year of importation or procurement of such goods or within such extended period not exceeding one year as the Asstt. Commissioner or Dy. Commissioner may allow on being satisfied that there is sufficient cause. In other words, the Notification provides for levy of duty only on raw materials, components, spares and consumables for failure to achieve NFEP and there is no provision in the Notification for demand of duty on capital goods in the event of unit failing to achieve NFEP. This view has already been expressed by the Tribunal in the case of Evergreen Synthetics Ltd. V. CC E, Surat [2002 (147) E.L.T.907]. 10. Having regard to these aspects, we are of the considered view that the matter under consideration would certainly go beyond the inter-se dispute between the parties and would partake the character of general public ..... X X X X Extracts X X X X X X X X Extracts X X X X
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