9911796707
TMI Blog2022 (4) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... e substantial questions of law were proposed. QUESTION OF LAW a. Whether Hon'ble CESTAT is right in holding that the issue of classification and other facets concerning exportation of subject goods had attained finality at the time of passing of the Order-in-Original? b. Whether Hon'ble CESTAT is right in setting aside the Order-in-Original in so far it changed the classification of exported goods from CTH 56079090 to CTH 56074900? c. Whether Hon'ble CESTAT is right in concluding that the charges of collusion, wilful misstatement, suppression of facts cannot be levelled against the applicant under section 28AAA of the Customs Act, 1962? 2. Today when the appeal was called out Mr. Mishra submitted reframed substantial question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial question of law. Dr. Kantawala submitted that where any order passed is against the order passed by the Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty or customs or to the value of goods for the purposes of assessment as provided under Section 130(E) of the Act, appeal shall lie to the Hon'ble Supreme Court of India. Dr. Kantawala submitted that the substantial questions of law originally proposed and the re-framed substantial questions of law indicate that the appeal is against the question relating to classification of goods which would mean determination of question in relation to the rate of customs duty of goods and therefore the appeal should be filed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng bills and not of classification? 7. Mr. Mishra submitted that appellant's grievance is relating, primarily to the grounds 5.1 and 5.2 raised in the appeal which read as under : 5.1 Hon'ble CESTAT is wrong in holding that the issue with regard to the effect of non-filing of an appeal against the assessment order and denial/claim of benefit arising out of such assessment at a subsequent stage is no more open for any debate as per the well settled principle of law laid down by Hon'ble Supreme Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd. reported in 2000 (120) ELT 285 (S.C.). 5.2 Hon'ble CESTAT in pronouncing its above judgment has overlooked its own judgment in Rajesh G. Gandhi vs CC (Import) Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 to December 2017 should not be classified under heading 56074900 instead of 56079090". The order passed by the Commissioner of Customs also states at paragraph no.12 "........ The ropes of various types which were exported during the period of April, 2015 to Dec. 2017, are to be classified under sub-heading 56074900 of the customs tariff, as opposed to the sub-heading 56079090 adopted by the exporter". Even the concluding paragraph of the tribunal's order impugned in this petition, paragraph no.17 states "In view of the foregoing discussions and analysis, we set aside the impugned order and allow the appeal, in so far as it has changed the classification of exported goods from CTH 56079090 to CTH 56074900, resulting in confirmation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination on the classification of goods. In fact, in Venus Enterprises (supra) relied upon by Mr. Mishra in paragraph no. 6 it is observed "In view of the clear finding with regard to the mis-declaration and suppression of value, which led to the under-valuation and proposed short-levy of duty ......". That also indicates that to decide whether there has been a short levy of duty, classification is required. 11. As regards the second re-framed substantial question of law, that would also arise only if Revenue succeeds in proving that there was erroneous classification by respondent and by virtue thereof there has been short levy or short payment of custom duty and hence penalty is payable. 12. As regards third re-framed substantial questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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