Gujarat High Court
Commissioner vs H on 18 July, 2012
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCA/1156/2002 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No.1156 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
HONOURABLE
MS.JUSTICE HARSHA DEVANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment?
2
To be
referred to the Reporter or not?
3
Whether
their Lordships wish to see the fair copy of the judgment?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder?
5
Whether
it is to be circulated to the civil judge?
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COMMISSIONER
OF CUSTOMS - Petitioner(s)
Versus
H
KUMAR GEMS INC & 5 - Respondent(s)
=========================================================
Appearance
:
1,MR
RJ OZA for Petitioner(s) : 1,
MR JC PATEL for respondent Nos.1 -
2 MR BD KARIA for Respondent(s) : 1 -
2.
MR HARDIK P MODH for Respondent(s) : 1 - 2.
RULE SERVED for
Respondent(s) : 3,
M/S TRIVEDI & GUPTA for Respondent(s) : 4,
6,
MS SM AHUJA for Respondent(s) :
5,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS.JUSTICE HARSHA DEVANI
Date
: 18/07/2012
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This petition is filed by the Commissioner of Customs, Ahmedabad calling in question the legality of the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (CEGAT for short) dated 2nd February 2001. By the said judgment, the CEGAT allowed the appeals of the respondent. The duty demands and penalties were either deleted completely or partially.
2. At the outset, learned counsel for respondent Nos.1 and 2 raised a preliminary objection with respect to the maintainability of the petition. The contention was that against the impugned judgment of the CEGAT, appeal under section 130E of the Customs Act, 1962 is available and such appeal would lie before the Supreme Court. He, therefore, contended that the present writ petition should not be entertained. Drawing our attention to para 16 of the judgment of the CEGAT, the counsel contended that besides others, question of rate of duty was an issue before the CEGAT which came to be decided in favour of the respondents. If the Department is aggrieved by such judgment, in terms of section 130E of the Customs Act, it must file an appeal and the present petition should, therefore, be not entertained.
3. Learned counsel Shri RJ Oza for the petitioner, however, countered such a contention submitting that the writ petition is maintainable since the issue decided by the CEGAT cannot be stated to be one in relation to the rate of duty.
4. We have heard the learned counsel for the parties only on this limited question of preliminary objection. It is undisputed that section 130E of the Customs Act provides for an appeal to the Apex Court against the judgment of the Tribunal under certain circumstances. Relevant portion of section 130E reads as under:
"130-E. Appeal to Supreme Court. A appeal shall lie to the Supreme Court from ---
(a)......
(b) any order passed before the establishment of the National Tax Tribunal 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."
From the above statutory provisions, it can be seen that any order passed by the 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 is appealable before the Apex Court. Under section 130A of the Customs Act, on the other hand, appeal against a decision of the Appellate Tribunal would lie at the hand of the Department against an order not being an order 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 the purposes of assessment. Thus, it can be seen that in case of appeals against the judgment of the Appellate Tribunal which are competent before the Apex Court, no appeal would lie before the High Court.
5. Two questions, therefore, need to be gone into. Firstly, is the decision of the CEGAT in the present case such where appeal would be maintainable before the Apex Court under section 130E of the Act and if so, in such a situation, should the writ petition at the hands of the Department be entertained.
6. In para 16 of the impugned judgment, the CEGAT decided the question of applicability or otherwise of concessional notification No.117/94. The CEGAT ruled in favour of the respondents. Relevant portion of the order reads as under:
"16. Now coming to the question of notification and rate of duty at the time of clearance, and its demand of differential duty, and invoking of extended period of limitation, it is necessary to consider the notification first. As already discussed above clause 15.1 of policy of relevant period, regarding the duty leviable on Silver and Gold imported under SIL is at concessional rate under Notification No.117/94-Customs. As per the above notification and Explanatory note thereunder the condition to be complied to get benefit there under is that the goods are covered by Special Import Licence issued in terms of Export and Import Policy from 1-4-1992 to 31st March, 1997 of Ministry of Commerce, Govt. of India. In this case there is no dispute about the issue of SIL's in accordance with the above policy. At the time of Import as per the clarification of DGFT under clause 4.15 of the policy, goods covered by SIL's produced afresh, and they were valid. So regarding duty element, the appellant M/s.H.Kumar Gems has complied the above condition and is eligible to concessional rate of duty. The contention of the said appellant is upheld."
From the above, it can be seen that one of the several issues which the CEGAT decided by the impugned judgment pertained to the applicability or otherwise of a notification prescribing concessional rate of duty. Such an issue would be one having relation to the rate of duty was the view expressed by the Division of this Court in the case of Commissioner of Central Excise v. JBF Industries Ltd., 2011 (264) E.L.T.162 (Guj.). It was a case arising out of central excise which has appeal provisions similar to those noticed hereinabove. In the background of such statutory provisions, question which arose before the High Court was whether an appeal would lie against the judgment of the Appellate Tribunal where one of the issues was applicability of a circular granting exemption from levy of National Calamity Contingent Duty. In this background, upholding the objection of maintainability of appeal raised by the respondents, the Division Bench made the following observations :
"10. In the light of the aforesaid judicial pronouncements, it is apparent that the question as to the applicability of a notification or a circular which has a bearing on the determination of the rate of duty is a question which has a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. In the circumstances, the present appeal which relates to the applicability of the above referred circular, relates directly to the determination of rate of duty for the purpose of assessment and as such, in the light of the provisions of section 35G read with section 35L of the Act, this Court has no jurisdiction to entertain the appeal."
7. In view of the above, we are not inclined to entertain this petition. In this respect, we may refer to a decision of the Apex Court in the case of Raj Kumar Shivhare v. Asstt. Director, Directrate of Enforcement, 2010(253) E.L.T. 3 (SC), pointed out to us by the counsel for the respondents. In the said decision, the Apex Court emphasized that where statutory appeals are available, writ petition should normally not be entertained avoiding such alternative remedy.
8. Had the question been of an appeal being maintainable before the High Court in terms of section 130A of the Customs Act, at this point of time, after the petition was admitted long back, we would not have perhaps refused to entertain the petition on merits since bar of entertainment of writ petition when alternative remedy is available is one of discretion. In the present case, however, statutory appeal lies before the Apex Court. Statute excludes the jurisdiction of the High Court from entertaining such an appeal. In a recent decision, the Apex Court in the case of Union of India v. Guwahati Carbon Ltd., 2012 (278) ELT 26 (SC) disapproved the practice of entertaining a writ petition by the High Court when statutory appeal under section 35L of the Central Excise Act, 1944 lies before the Supreme court. The Apex Court made the following observations :
"17. Having said so, we have gone through the orders passed by the Tribunal. The only determination made by the Tribunal is with regard to the assessable value of the commodity in question by excluding the freight/transportation charges and the insurance charges from the assessable value of the commodity in question. Since what was done by the Tribunal is the determination of the assessable value of the commodity in question for the purpose of the levy of duty under the Act, in our opinion, the assessee ought to have carried the matter by way of an appeal before this Court under section 35L of the Central Excise Act, 1944.
18. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first, the order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee."
9. In a recent order dated 20th June 2012, passed in Special Civil Application No.13295 of 2004 and connected petitions, we had, taking note of the decision of the Apex Court in the case of Guwahati Carbon Ltd. (supra), refused to entertain the writ petitions making following observations :
"2.
At the outset, we had posed a question of maintainability of the writ petition with the counsel. He fairly conceded that whether the process under by the petitioners amounts to manufacture would involve determination of a question relating to the rate of duty of excise and that, therefore, in terms of the provisions contained in section 35L of the Central Excise Act, 1944, the appeal against such an order of the Tribunal would lie only to the Supreme Court and not before this Court. Even otherwise, we had before us a decision of Division Bench of this Court in case of Commissioner of Central Excise & Customs v. Swiss Glass Coat Equipments Ltd. reported in 2011 (273) ELT 364 (Guj.) taking a similar view.
3. We are of the opinion that when against the impugned judgement of the Tribunal, appeal under the Central Excise Act is exclusively available before the Apex Court, it would not be open for us to entertain the challenge against such a judgement of the Tribunal in a writ petition. If the appeal was otherwise competent before the High Court, perhaps it may be open for an assessee to contend that in given set of facts and circumstances, the Court may entertain a writ petition, even ignoring availability of an alternative remedy. However, when the appeal provided under the statute against the judgement of the Tribunal lies before the Apex Court, to the exclusion of this Court, it would not be open for us to entertain a writ petition and bypass such appellate remedy. This is precisely the view expressed by the Apex Court in the decision in case of Union of India v. Guwahati Carbon Ltd.
reported in 2012 (278) ELT 26 (SC). "
10. Under the circumstances, the preliminary objection of the respondents is upheld. The petition is dismissed only on this ground. Rule is discharged.
(Akil Kureshi, J.) (Harsha Devani, J.) (vjn) Top