9911796707
TMI Blog2022 (10) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... olved. Section 130 of Customs Act provides for an Appeal to the High Court from every order passed by the Appellate Tribunal. Such tax appeal is, however, not maintainable against an order relating among other things, to the determination of any questing having a relation to the rate of duty of customs or to the value of goods for purpose of assessment - In the present matter main controversy question is whether the goods were classifiable under Tariff heading 7326 or Tariff heading 8482 and the recovery of drawback is consequential controversy. Following the Hon ble Apex Court judgment in M/S. ASEAN CABLESHIP PTE. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [ 2022 (3) TMI 760 - SUPREME COURT ], it is held that the present Appeals are maintainable before the Tribunal. Classification of the impugned goods manufactured and exported by the Appellant - whether it would be classifiable under Chapter heading 73261600 as claimed by the Appellant or 84829900 as held by the Ld. Commissioner (Appeals)? - HELD THAT:- The disputed goods require further operation and such goods when not fit for being ready to use, would appropriately classifiable under Tariff item 7326. The issue under r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided the case and re-classified the goods under the proposed classification and sr. number of drawback schedule and held the goods liable for confiscation and imposed redemption fine; ordered recovery of excess drawback; imposed penalty on the Appellant and Shri A Philip Mathew, Vice president of Appellant. Being aggrieved Appellants filed appeals before the Commissioner (Appeals) who vide impugned order rejected the Appeals of Appellant and upheld the OIO dated 23.11.2016. Hence the Appellants are before us. 2.1 Another second show cause notice dated 16.03.2017 was also issued to the Appellant by Additional Commissioner of Customs, proposing to reject the classification of goods under CTH 73261990 and to classify the goods under CTH 84829900 and rejection of drawback claim. The said show cause notice adjudicated vide OIO dtd. 24.03.2020. Being aggrieved, Appellants filed appeals before the Commissioner (Appeals), who has dismissed the same vide impugned Order-In-Appeal dated 24.03.2020. Hence, appellant filed appeals before the Tribunal. 03. Shri Vinod Lukose, Superintendent (AR) appearing for the revenue has raised a preliminary objection on Trubunal s jurisdiction. He su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of a forum for entertaining an appeal, the main controversy and/ or the principal question is required to be addressed, and not the consequence or the outcome of determination of the main controversy and/or the principal question. He placed reliance on the following judgments:- Asean Cableship PTE. Ltd. 2022(380) ELT 4 (SC) CC Vs. Motorola (India) Ltd. 2019(368)ELT 3 (SC) United India Insurance Company Ltd. Vs. Ajay Sinha and other 2008 (7) SCC 454 State of Chhattisgarh Anr. Vs. Chandra Bhan Singh Other -AIR 2014 Chhattisgarh 6 Marvel Appearels Vs. CC, Tuticorin 2010(259) ELT 417 (Tri. Chennai) Web Knit Exports (P) Ltd. Vs. CC, Tuticorin 2013(295)ELT 612 (Tri. Chennai) Fancy Images and Ors. Vs. CC, New Delhi MANU/CE/0001/2017 4.2 On merits he submits that impugned order is absolutely illegal as it has been passed by the Ld. Commissioner (Appeals) without following the binding decision of jurisdictional Hon ble Tribunal in the case of Shri Rolex Rings Ltd. Vs. Commissioner of Customs 2016(335) ELT 69 (Tri. Ahmd.), duly affirmed by the Hon ble Supreme Court as reported at 2016(338) ELT A32(SC). The facts, circumstance and allegation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under Section 130, as it stood immediately before that day : Provided that no appeal shall lie to the AppellateTribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, - (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination; (c) payment of drawback as provided in Chapter X, and the rules made thereunder : Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where (i) the value of the goods confiscated without option having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has first decided the classification issue. Therefore, in the present matter principal question for deciding the matters is Classification of Goods and Tribunal have jurisdiction to decide the classification issues. In this circumstances, we hold that, in terms of Section 129A, the present appeals are maintainable before the Tribunal. 5.1 We note that Section 130 of Customs Act provides for an Appeal to the High Court from every order passed by the Appellate Tribunal. Such tax appeal is, however, not maintainable against an order relating among other things, to the determination of any questing having a relation to the rate of duty of customs or to the value of goods for purpose of assessment. This exclusion of Jurisdiction of the High Court of entertaining an Appeal is strictly constructed by the Hon ble Supreme Court because the exclusion of Jurisdiction is not to be readily inferred. We also find that in the matter of Asean Cableship PTE. Ltd. Vs. Commissioner of Customs 2022 (380) ELT 4 (SC) dispute related to maintainability of the Appeal before the High court has come up before the Hon ble Apex court and in the said matter the Hon ble Apex court observed as under : - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t payment of duty, be consumed thereon as stores during the said period such vessel or aircraft is a foreign-going vessel or aircraft. It is submitted that therefore if the stores are eligible to the exemption under Section 87 of the Act as claimed by the petitioner, the duty on imported stores will be NIL, and if not, (as per the case of the Customs Department), it will be applicable rate of duty. It is submitted that therefore, the dispute can be said to be having a relation to the rate of duty for the purpose of assessment and hence against the order passed by the CESTAT, holding that the petitioner is not liable to pay any duty applying Section 87 of the Act, appeal shall be maintainable to this Court only. 3 . Making the above submissions, it is prayed to set aside the impugned order passed by the High Court holding that against the order passed by the CESTAT impugned before the High Court under Section 130(1) would be maintainable. 4. The short question to be considered in the present Special Leave Petition, is whether, against the order passed by the CESTAT impugned before the High Court the appeal would be maintainable before the High Court under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere tenable before the Supreme Court under Section 130E of the Act. 6 . Therefore, in the facts and circumstances of the present case the High Court is right in observing that the principal question in the present case is not in relation to the rate of duty but determining whether vessel AE is a foreign-going vessel or not, and if the vessel AE is a foreign-going vessel, Section 87 of the Act will be applicable or not. Therefore, with respect to such an issue, against the order passed by the CESTAT, the appeal would be maintainable before the High Court under Section 130 of the Act. We are in complete agreement with the view taken by the High Court. 5.2 Thus, we find force in argument of learned Counsel that while considering jurisdiction of a forum for entertaining an appeal, the main controversy question is required to be addressed and not the consequences. In the present matter main controversy question is whether the goods were classifiable under Tariff heading 7326 or Tariff heading 8482 and the recovery of drawback is consequential controversy. Following the above Hon ble Apex Court judgment we hold that the present Appeals are maintainable before the Tribunal. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir raw material, and such round bars/ rods are heated at appropriate temperature in induction bar heater and cut according to required size. The cut pieces are then subjected to forging process using power press machine by 3 different strokes for upsetting, punching and piercing which is known as rough forged ring. The process of annealing carried out in Electric /gas furnace and thereafter issued for short blasting if required. Thereafter, the process of proof machining is being done. Further, the said rings are machined on CNC machines. Alloys steel forged Machined rings which are to be further subjected to heat treatment, grinding, super finishing (like honing and lapping) processes are to be done at buyers end to convert into bearing race. 5.5 The disputed goods manufactured and sold by Appellant were subjected to additional process at the buyer s end before being used in manufacture of ball or roller bearings and the said facts also clear from the statement dated 22.07.2013 of Shri Alamcheril Philips Mathew , Vice President of Appellant. Against the Q.16 he stated as under: After forging, annealing and machining, the ring is subjected to heat treatment of hardening an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
