Madras High Court
The Commissioner Of Customs vs M/S.Tamil Nadu Newsprint & Papers Ltd on 8 January, 2014
Author: A.Selvam
Bench: A.Selvam, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.01.2014 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM CMA(MD)No.792 of 2010 and CMA(MD)No.793 to 795 of 2010 The Commissioner of Customs, Office of the Commissioner of Customs, Custom House, Tuticorin - 628 004. .. Appellant/Respondent in all CMAs. Vs M/s.Tamil Nadu Newsprint & Papers Ltd., Kagithapuram, Karur District. .. Respondent/Appellant in all CMAs. Civil Miscellaneous Appeals filed under Section 130 of the Customs Act, 1962 against the common Final Order Nos.1181 of 2009, 1184 of 2009, 1183 of 2009 and 1182 of 2009 dated 31.08.2009 by the CESTAT, Chennai. !For Appellant ... Mr.R.Aravindan (all CMAs.) ^For Respondent ... Mr.S.Muthu Venkataraman (all CMAs.) :COMMON JUDGMENT
(Judgment of the Court was delivered by A.SELVAM, J.) These Civil Miscellaneous Appeals have been directed against the final orders dated 31.08.2009 passed in common Final Order Nos.1181 of 2009, 1184 of 2009, 1183 of 2009 and 1182 of 2009 by the CESTAT, Chennai.
2. The respondent has been doing the business of newsprint and papers and used to import coal for doing its business. Under the said circumstances, the appellant/Department has sent a communication to the effect that the respondent has used to import only bituminous coal and therefore, the respondent is liable to pay customs duty on the basis of revised rates and the same has been upheld by way of passing Order-in-Original. Against the order passed in original, Appeals have been filed before the Commissioner of Appeals. The Commissioner of Appeals has confirmed the Orders passed in original. Against which, relevant Appeals have been filed before the CESTAT.
3. The CESTAT after hearing both sides has given a specific finding to the effect that the claim made by the Department is not factually and legally sustainable and consequently allowed all the Appeals by way of passing impugned final orders. Against the Final Orders passed by the CESTAT, the present Civil Miscellaneous Appeals have been filed.
4. At the time of admitting CMA(MD)Nos.792 to 795 of 2010, the following common substantial questions of law have been formulated:
(i) Whether the CESTAT's order that without department's chemical test, the department has no basis to classify the impugned goods under heading 2701.12, is correct in law?
(ii) In the facts and circumstances of the case, whether accepting the respondent's contention, against the general fact, without any sound technical basis is correct in law?
5. The learned counsel appearing for the appellant has advanced his repetitive argument to the effect that the specific case put forth on the side of the appellant/department is that the respondent has imported only bituminous coal and not steam coal. Under the said circumstances, the demand in question has been made and the demand of the Department has been rightly upheld in Orders-in-Original as well as Commissioner of Appeals. But the CESTAT without giving necessary finding with regard to real issue involved in the present lis, has erroneously set aside the demand made by the Department, upheld Order-in- Original as well as by the Commissioner and therefore, the Final Orders passed by the CESTAT are liable to be set aside.
6. The learned counsel appearing for the respondent has contended that the present issue arises in between the appellant as well as respondent is related to rate of duty and also related to classification of goods. Under the said circumstances, as per Sections 130A as well as 130E (b) of the Customs Act, 1962 an Appeal shall lie only before the Supreme Court and therefore, this Court has no jurisdiction to entertain the present Civil Miscellaneous Appeals and altogether these Civil Miscellaneous Appeals are liable to be dismissed.
7. It is an admitted fact that the respondent has been doing the business of newsprint and papers. It is also equally an admitted fact that the respondent has used to import coal in relation to its business.
8. The nature of demand made by the appellant/Department is that the coal imported by the respondent is not an ordinary steam coal and it is only a bituminous coal and the same is liable to be taxed.
9. The demand made by the appellant /Department has been accepted in Orders-in-Original as well as the orders passed by the Commissioner of Appeals. But the CESTAT has set aside the demand made by the appellant/Department and also set aside the Orders-in-Original as well as the orders passed by the Commissioner of Appeals.
10. The main gravamen expressed on the side of the appellant is that the CESTAT even without deciding the real issue which involved in the present lis to the effect as to whether the coal in question is a steam coal or bituminous coal, has erroneously set aside the demand.
11. As a repartee to the contention put forth on the side of the appellant/department, the learned counsel appearing for the respondent has drawn the attention of the Court to the sections mentioned infra.
12. Section 130A of the Customs Act, 1962 reads as follows:
Application to High Court.-(1) The Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 129B passed [before the 1st day of July 2003] (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 purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.
(2) The Commissioner of Customs or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred.
(3) On receipt of notice that an application has been made under sub-
section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such application, file, within forty- five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the High Court as if it were an application presented within the time specified in sub-section(1).
[(3A) The High Court may admit an application or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (1) or sub-section (3), if it is satisfied that there was sufficient cause for not filing the same within that period.] (4) If, on an application made under sub-section (1), the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court.]
13. Section 130E (b) of the said Act reads as follows:
Appeal to Supreme Court.- An appeal shall lie to the Supreme Court from -
(a) any judgment of the High Court delivered-
(i) in an appeal made under section 130; or
(ii) on a reference made under section 130 by the appellate Tribunal before the 1st day of July, 2003;
(iii) On a reference made under Section 130A, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or]
(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 relating to the rate of duty of customs or to the value of goods for purposes of assessment.
14. A conjoint reading of the said Sections would clearly go to show that, with regard to determination of any question having a relation to the right of duty of customs or to the value of goods for the purpose of assessment, Appeal shall lie before the Supreme Court.
15. In the instant cases, two aspects are involved. The first and foremost attack is only with regard to imposition of customs duty and the second aspect is classification of goods.
16. Even with regard to second aspect, the learned counsel appearing for the respondent /assessee has drawn the attention of the Court to the following decisions:
(a) In 2006 (203) ELT 20 (Mad) [Commissioner of Central Excise (CCE) Vs. CEGAT, Chennai, it has been clincingly held that even with regard to classification of goods, Appeal shall lie before the Supreme Court, against the order passed by the Tribunal. The same view has been expressed in the decisions reported in 2009 (240) ELT 333 (Madras) [Commissioner of Customs, Chennai Vs. Ashu Exports; 2011 (270) ELT 49 (Karnataka) [CCE, Mangalore Vs. Mangalore Refineries & Petrochemicals Ltd.,]; 2012 (280) ELT 33 (Karnataka) (CCE, Pune-III Vs. G.E.Medical Systems] and 2012 (275) ELT 53 (Karnataka) [Commissioner of Customs, Bangalore Vs. Motorola (India) Ltd.,].
17. It has already been pointed out that in these Civil Miscellaneous Appeals two aspects are involved. With regard to first aspect, as per Section 130E (b) of the Customs Act, 1962, against the order passed by the Tribunal, an Appeal shall lie before the Hon'ble Apex Court and with regard to second aspect also, on the basis of the consistent decisions referred to supra, against the order of Tribunal, an Appeal shall lie before the Hon'ble Apex Court.
18. As pointed out earlier, the main grievance expressed on the side of the appellant is that the Tribunal has not given a specific finding with regard to classification of goods. Even in that case also, appeal shall lie before the Supreme Court. Therefore, viewing from any angle, these Civil Miscellaneous Appeals are not at all maintainable before this Court and altogether the same are liable to be dismissed.
19. In fine, these Civil Miscellaneous Appeals deserve dismissal and accordingly are dismissed without cost as not maintainable.
mj To
1.The Commissioner of Customs, Office of the Commissioner of Customs, Custom House, Tuticorin - 628 004.
2.The Customs, Excise and Service Tax Appellant Tribunal, Chennai.