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TMI Blog2023 (6) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... e on hand and records a finding which could be termed as perverse, then definitely, such decision of the Tribunal would give rise to a question of law. In the case of Rajkamal Industrial Pvt. Ltd. [ 2022 (2) TMI 264 - GUJARAT HIGH COURT] , this Court held Where the determination of an issue depends upon the appreciation of evidence or materials resulting in ascertainment of basic facts without application of any principle of law, the issue raises a mere question of fact. In the present case, to arrive at the conclusion that the product is SKO, there are eight parameters which need to be tested. As per the Test Report, three parameters were tested. However, the Test Report of the Chemical Examiner categorically suggests that the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Opponent(s) No. 1 : Mr. Paresh M Dave (260) ORAL ORDER (PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) 1. The present Tax Appeal under Section 130 of the Customs Act, 1962 (hereinafter referred to as the Act ) is at the instance of the Revenue and is directed against the order dated 10.08.2022 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the CESTAT for short), Ahmedabad. 2. The brief facts leading to filing of the present appeal are as under: 2.1. That M/s. Oil Energy (hereinafter referred to as the importer ) had filed Bill of Entry No. 7736631 dated 22.08.2018 seeking clearance of 117.86 MT of Low Aromatic White Spirit packed in flexi pack, by classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, preferred an appeal before the CESTAT, Ahmedabad. The CESTAT passed the impugned order in favour of the respondent and therefore the present Tax Appeal has been filed by the Revenue. 3. Heard learned Additional Solicitor General Mr. Devang Vyas assisted by learned advocate Mr. Dhaval Vyas for the appellant and learned advocate Mr. Paresh Dave for the respondent. 4. The learned ASG has mainly contended that as per the Test Report given by the Chemical Examiner, the goods imported by the importer are meeting with the specification of Kerosene. It is submitted that vital parameters have been tested and it was found that the product in question is Kerosene. Learned counsel referred the Report and submitted that to arrive at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal may not be admitted. Learned counsel has referred the observations made by the learned CESTAT while allowing the appeal filed by the respondent herein importer. It is submitted that without testing the samples with reference to (1) acidity (2) burning quality (3) colour (4) copper strip corrosion and (5) sulphur content and by citing only distillation, the Adjudicating Authority as well as the First Appellate Authority have dismissed the claim of the importer. It is submitted that out of eight parameters, only one parameter i.e. distillation (flash point being the second and common between solvent and kerosene) report was submitted by the concerned Laboratory. Learned counsel, therefore, submits that the decision rendered by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal overlooks certain basic principles of law applicable to the case on hand and records a finding which could be termed as perverse, then definitely, such decision of the Tribunal would give rise to a question of law. 12. In the case of Rajkamal Industrial Pvt. Ltd. (supra), this Court observed in para 30 as under: 30 Although the expression substantial question of law has not been defined in any Act or in any of the statutes where this expression appears, yet the true meaning and connotation of this expression is now well settled by various judicial pronouncements. It was observed by the Supreme Court in Sir Chunilal V. Mehta Sons Ltd. v. Century Spg. Mfg. Co. Ltd. [1962 AIR 1314 : 1962 SCR Supl. (3) 549] that a quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is the ultimate factfinding authority, if it has reached certain findings upon examination of all relevant evidence and materials before it, the existence or otherwise of certain facts at issue is a question of fact. Any inference from certain facts is also a question of fact. If a finding of fact is arrived at by the Tribunal after improperly rejecting evidence, a question of law can arise. While the Tribunal acts on materials partly relevant and partly irrelevant, it can give rise to a question of law if it is impossible to say to what extent the irrelevant material was used to arrive at the finding. Such a finding is vitiated because of the use of inadmissible material. Where any finding is based on no evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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