Gujarat High Court
Ruchi Soya Industries Ltd vs Union Of India Thr' Its Secretary & 6 on 25 July, 2014
Bench: M.R. Shah, Sonia Gokani
C/SCA/25086/2006 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 25086 of 2006
With
TAX APPEAL NO. 1270 of 2006
With
TAX APPEAL NO. 1271 of 2006
With
TAX APPEAL NO. 1272 of 2006
With
CIVIL APPLICATION NO. 217 of 2007
In
TAX APPEAL NO. 40 of 2007
With
TAX APPEAL NO. 40 of 2007
With
TAX APPEAL NO. 43 of 2007
With
TAX APPEAL NO. 42 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MS JUSTICE SONIA GOKANI sd/
=============================================
1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair copy NO
of the judgment ?
4. Whether this case involves a substantial question NO
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 ? NO ============================================= RUCHI SOYA INDUSTRIES LTD.....Petitioner(s) Versus UNION OF INDIA THR' ITS SECRETARY & 6....Respondent(s) ============================================= Page 1 of 19 C/SCA/25086/2006 CAV JUDGEMNT Appearance:
Special Civil Application No. 25086 of 2006 MR GL Raval,SR. Counsel with MR DIPEN DESAI, ADVOCATE for Petitioner MR RJ OZA, SR. STANDING COUNSEL for Respondent Nos.2 to 4 MR ABHIJIT P JOSHI for Respondent No.6 Tax Appeal No.1270 of 2006 MR RJ OZA, SR. STANDING COUNSEL for Appellant MR GL RAWAL,SR.COUNSEL with MR DIPEN DESAI for Respondent Tax Appeal No.1271 of 2006 MR RJ OZA, SR. STANDING COUNSEL for Appellant MR GL RAWAL,SR.COUNSEL with MR DIPEN DESAI for Respondent Tax Appeal No.1272 of 2006 MR RJ OZA, SR. STANDING COUNSEL for Appellant MR GL RAWAL,SR.COUNSEL with MR DIPEN DESAI for Respondent Tax Appeal No.40 of 2007 MR RJ OZA, SR. STANDING COUNSEL for Appellant MR GL RAWAL,SR.COUNSEL with MR DIPEN DESAI for Respondent OJCA No.217 of 2007 in Tax Appeal No.40 of 2007 MR GL Raval ,SR.Counsel With MR DIPEN DESAI, ADVOCATE for Applicant MR RJ OZA, SR. STANDING COUNSEL for Respondent Tax Appeal No.42 of 2007 MR RJ OZA, SR. STANDING COUNSEL for Appellant MR GL RAWAL,SR.COUNSEL with MR DIPEN DESAI for Respondent Tax Appeal No.43 of 2007 MR RJ OZA, SR. STANDING COUNSEL for Appellant MR GL RAWAL,SR.COUNSEL with MR DIPEN DESAI for Respondent ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MS JUSTICE SONIA GOKANI Date :25/07/2014 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Tax Appeal No.1270 of 2006, Tax Appeal No.1271 of 2006 and Tax Appeal No.1272 of 2006 have been preferred by the common appellant Commissioner of Customs (Preventive), Jamnagar challenging Page 2 of 19 C/SCA/25086/2006 CAV JUDGEMNT the impugned common judgment and order passed by the learned Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as "CESTAT") dated 4.4.2006 passed in Appeal No. A/314 to 316 /WZB/2006CII (CSTB).
2.0. At the outset, it is required to be noted that all these aforesaid appeals are admitted by this Court to consider following substantial question of law.
"A. Whether or not Tribunal has erred in relying upon the report of the private Laboratory in holding that carotene content in Crude Palm Oil will be reduced by passage of time, whereas CRCL New Delhi informed that the Standard Technical Literature do not find mention about the degradation / reduction of carotenoid content (as beta carotene) due to passage of time, change in atmosphere condition and temperature ?
B. Whether or not benefit of Notification No. 21/2002 Cus dated 1.3.2002 as amended would have been granted to the respondents, ignoring the test report of the Chemical Examiner and the Chief Chemist of the Government and relying upon the test opinion of the private laboratory?"
3.0. Tax Appeal No. 40 of 2007, Tax Appeal No. 42 of 2007 and Tax Appeal No. 43 of 2007 have been preferred by the common appellant Commissioner of Customs (Preventive), Jamnagar challenging the common judgment and order passed by the learned Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as "CESTAT") dated 5.6.2006 passed in Final Order No.A/569 to 571/WZB/2006/CII (CSTB) passed in the matter of appeal no. C/235237/2006.
4.0. At the outset, it is required to be noted that all these aforesaid appeals are admitted by this Court to consider following substantial question of law.
"A. Whether or not Tribunal has erred in relying upon the report of the private Laboratory in holding that carotene content in Crude Palm Oil will be reduced by passage of time, whereas CRCL New Delhi informed that the Standard Technical Literature do not find mention about the degradation / reduction of carotenoid content (as beta carotene) due to Page 3 of 19 C/SCA/25086/2006 CAV JUDGEMNT passage of time, change in atmosphere condition and temperature ?
B. Whether or not benefit of Notification No. 21/2002 Cus dated 1.3.2002 as amended would have been granted to the respondents, ignoring the test report of the Chemical Examiner and the Chief Chemist of the Government and relying upon the test opinion of the private laboratory?"
5.0. The facts leading to the present appeals in nutshell are as under:
6.0. That the common respondent herein M/s. Ruchi Soya Industries and Another (hereinafter referred to as "Importer") imported subject goods Crud Palm Oil (CPO) it is vegetable item and one of the contents of the same is carotene. That the Central Government issued Notification No. 21/2002Cus dated 1.3.2002 which was amended by Notification No.120/2003CUS dated 1.08.2003. The said notifications which were issued under Section 25 of the Customs Act, 1962 provide that in case Carotene Value in CPO is within the range of 5002500 mg/kg duty leviable will be 65% as against 75%.
6.1. That the vessel carrying the subject goods arrived at Kandla Port & sample was taken from subject goods on board the vessel. That the samples were sent for testing to know the contents of the carotene value. Initially the test was conducted in Customs Lab at Kandla. According to the respondent importer, result of the sample were drawn on board on 3.7.2004 and from shore tank on 7.7.2004 showed caroteniod as 580.5 mg/kg and 791.7 mg/kg respectively. According to the importer, similarly chemical results revealed from Customs and Central Excise Lab at Vadodara showed beta carotene contents in the sample drawn on board and from shore tanks as 606 mg/kg and 801 mg/kg respectively. Thereafter, based on some intelligence report Revenue Authority/ Commissioner of Customs (Preventive), Jamnagar Page 4 of 19 C/SCA/25086/2006 CAV JUDGEMNT had some doubt with respect to contents of carotene value in CPO as mentioned in the report, revenue again drew samples of the subject goods lying in the shore tank on 3.8.2004. The test report dated 10.8.2004 issued by the Customs Lab at Kandla in respect of these samples revealed the caroteniod's value as 436.65 mg/kg. The samples were sent for testing to CRCL, New Delhi and CRCL, New Delhi vide its report dated 22.09.2004 showed carotene value as 436.8mg/kg.
6.2. Based upon the above, the proceedings were initiated against the importer by way of issuance of show cause notice proposing denial of benefit of notification No.21/2002Cus dated 1.3.2002 confiscation of the goods and imposition of penalty thereupon. That the Commissioner passed the order denying the benefits of concessional rate of duty as 65% basic custom duty in terms of the notification and passed the adjudication order and confiscated the Crude Palm Oil imported by the imported with an option to reeder the same on payment of redemption fine. It is so imposed the penalty upon the importer and one M/s. General Foods under Section 112(1)(ii) of the Customs Act, 1961. That feeling aggrieved and dissatisfied with the order passed by the Commissioner, importers and others preferred Appeals before the CESTAT being Appeal No. C/19 to 21 of 2006, the main controversy before the CESTAT was with respect to concerned Laboratory should be believed as there was difference in the Carotene Value in report of different laboratories. By common impugned judgment and order, the learned CESTAT has allowed the aforesaid appeal by quashing and setting aside the Order in Original and holding that over a period of time, the beta carotene contents in crude palm oil decreases and has further held that crude palm oil imported satisfies the conditions of the relevant notification.
Page 5 of 19C/SCA/25086/2006 CAV JUDGEMNT 6.3. Feeling aggrieved and dissatisfied with the impugned common judgment and order, the common appellant Commissioner of Customs (Preventive), Jamnagar has preferred the aforesaid appeals and all the aforesaid appeals have been admitted by this Court to consider the aforesaid substantial question of law.
7.0. When the present appeals are taken up for final hearing, Shri G.L. Raval, learned Senior Advocate appearing on behalf of the respective respondents herein importers has raised the preliminary objection with respect to maintainability of the present appeals under Section 130 of the Customs Act, 1962 before this Court. According to Shri Raval, learned Senior Advocate appearing on behalf of the importer against the impugned common judgment and order passed by the learned CESTAT, appeal / appeals would be maintainable before the Hon'ble Supreme Court only and this Court has no jurisdiction to entertain the appeals against the impugned judgment and order passed by the learned CESTAT.
7.1. It is submitted by Shri Raval, learned Senior Advocate for the importer that as the question involved in the decision of the Tribunal relates to availing the benefit of notification, resulting rate of duty and value of goods for determination of duty, against the impugned judgment and order of the learned CESTAT, the appeal would not lie to the High Court and appeal would lie before the Hon'ble Supreme Court under Section 130 E of the Customs Act, 1962. It is submitted that after the impugned judgment and order passed by the learned CESTAT again in the case of very importer, on the same issue learned CESTAT delivered the judgment and the revenue challenge the said decision before the High Court of Karnataka at Bangalore and Hon'ble High Court of Karnatka has held that appeal before the High Court would not Page 6 of 19 C/SCA/25086/2006 CAV JUDGEMNT be maintainable and appeal before the Hon'ble Supreme Court under Section 130(E) of the Act would be maintainable and consequently High Court dismissed the said appeal. It is submitted that in the present case also the respondents importers have been denied the benefit of Notification No.21/2002Cus dated 1.3.2002 and Notification No.120/2003CUS dated 1.08.2003 and denied the benefit of concessional rate of duty to 65% from the 75%. It is submitted that therefore, the dispute is with respect to benefit of concessional rate of duty to 65% to 75% as per the Notification as well as value of subject goods for determination of the duty being tariff value. It is submitted that therefore, when the question involved is rate of duty, classification and value of goods for determining the duty, appeal shall be maintainable before the Hon'ble Supreme Court only.
7.2. It is submitted by Shri Raval, learned Senior Advocate for the respondent importer that importer claims that the rate of duty with respect to subject goods would be 65% and according to the revenue the rate of duty applicable would be 75% and therefore, the dispute is with respect to rate of duty and therefore, when the dispute is with respect to the rate of duty appeal shall be maintainable before the Hon'ble Supreme Court alone.
7.3. It is further submitted by Shri Raval, learned Senior Advocate for the respondent importer that as per the importer the subject goods falls under classification No. CPS 1511100 and as per the department the same is classified under classification No.15119090 and accordingly the same is assessed and therefore, there shall be a dispute with respect to classification of goods and therefore, appeals shall be maintainable before the Hon'ble Supreme Court alone.
Page 7 of 19C/SCA/25086/2006 CAV JUDGEMNT 7.4. It is further submitted by Shri Raval, learned Senior Advocate for the respondent importer that even there shall be dispute with respect to valuation. It is submitted that in the present case tariff value claimed 504 US$ however, the department assessed at 523 US$. It is submitted that therefore, the dispute shall be with respect to the valuation also and therefore, also the appeal shall be maintainable before the Hon'ble Supreme Court and therefore, it is requested to dismiss the present appeals preferred under Section 130 of the Customs Act.
7.5. In support of his above submissions and requested to dismiss the present appeals as not maintainable, Shri Raval, learned Senior Advocate for the respondent importer has relied upon the following decisions of the Hon'ble Supreme Court as well as various High Courts.
1. (1993)4 SCC 320.
2. 2012 (278) ELT 26 (SC)
3. 1996 (18) ELT 173 (SC)
4. 2002 (142) ELT 292(Bom)
5. 2002 (145) ELT 515 (Bom)
6. 2009 (242) ELT 330 ( P & H)
7. 2013 (295) ELT 678 (Guj)
8. Unreported decision of this Court dated 16.8.2012 passed in Tax Appeal No. 1054 of 2006.
7.6. Making above submissions and relying upon the above decisions, it is requested to dismiss the present appeals by holding against the impugned judgment and order passed by the learned CESTAT, appeals would not be maintainable before this High Court and the Appeals should be maintainable before the Hon'ble Supreme Court.
Page 8 of 19C/SCA/25086/2006 CAV JUDGEMNT 8.0. Shri R.J. Oza, learned Senior Advocate has appeared on behalf of department. He has made elaborate submissions on the preliminary objection raised by the learned advocate appearing on behalf of the importer and in support of his submissions that the present appeals filed by the department before this Court would be maintainable under Section 130 of the Customs Act, 1962.
8.1. Shri Oza, learned counsel appearing on behalf of the department appellant has vehemently submitted that as such the issue / question involved in the present appeals is whether which reports are to be believed and considered. It is submitted that the question raised in the present appeal is whether the learned Tribunal has erred in relying upon the report of the private Laboratory in holding that carotene content in Crude Palm Oil will be reduced by passage of time, whereas CRCL New Delhi informed that the Standard Technical Literature do not find mention about the degradation / reduction of carotenoid content (as beta carotene) due to passage of time, change in atmosphere condition and temperature. It is submitted that even the question of law raised while admitting the present appeals are also with respect to whether to rely upon the report of the Private Laboratory or the report of CRCL, New Delhi and also whether or not benefit of notification no. 21/2002CUS dated 1.3.2002 as amended would have been granted to the respondents ignoring the test report of the Chemical Examiner and the Chief Chemist of the Government and relying upon the test opinion of the private laboratory? It is submitted that therefore, the issues / question raised in the appeals preferred by the Customs Department did not have any direct or proximate relationship to the rate of duty and to the value of goods for the purpose of assessment.
8.2. It is further submitted by Shri Oza, learned counsel for the Page 9 of 19 C/SCA/25086/2006 CAV JUDGEMNT department that in the present case the importer imported consignments of the Crude Palm, Oil which arrived at the port on 3.7.2004. The representative sample of imported Crude Petroleum Oil were drawn on board and thereafter the goods were discharged from the vessel. After discharge of the goods, representative samples were again drawn on 7.7.2004 and sent for test. It is submitted that in the present case in terms of serial no. 34 Notification no.21/02 Cyus dated 1.3.2002, as amended vide Notification No.120/03 Cus dated 1.8.2003, Crude Palm Oil attracted concessional rate of Basic Customs Duty of 65% if total carotenoid (as beta carotene) is in the range of 5002500 mg/kg. If the above requirement is not met, the Crude Palm Oil would be classifiable under Heading 151190.90 of the Customs Tariff Act, 1975 attracting higher rate of customs duty of 75%. It is submitted that thus to earn the exemption in terms of the above Notification Crude Palm must contain carotenoid in the range of 5002500 mg/kg. It is submitted that in the present case the result of the samples drawn on board on 3.7.2004 and from shore tanks on 7.7.2004 showed the carotenoid as 580.5 mg/kg and 791.7 mg/kg respectively. It is submitted that as such based on some intelligence report Revenue Authorities again drew the samples of the goods lying in the shore tanks on 3.8.2004 and the test report dated 10.8.2004 issued by the Customs Laboratory at Kandla in respect of these samples revealed the carotenoid's value as 436.65 mg/kg and therefore, it was believed that beta carotene contents being less than 500 in terms of the above test report, the consignment of Crude palm Oil was not entitled to the benefit. It is further submitted that even according to the department the remnant of the samples drawn were subsequently sent to Central Revenue Control Laboratory, New Delhi and the result dated 22.9.2004 showed carotenoid contents as 436.8 mg/kg. It is submitted that according to the importer the content of carotenoid was between 5002500 mg/kg i.e. 580.5 mg/kg and 791.7 Page 10 of 19 C/SCA/25086/2006 CAV JUDGEMNT mg/kg respectively and therefore, they are entitled to benefit of the notification direction concessional rate of basic custom duty of 65%. On the other hand, relying upon the report of the Central Revenue Control Laboratory, New Delhi and Laboratory at Kandla on the basis of samples drawn all the goods lying in the shore tank on 3.8.2004 the contents of carotenoid is found less than 500 i.e. 436.65 mg/kg and therefore, importer is not entitled to benefit of the notification of directing concessional rate of basic duty and therefore, they are liable to pay higher rate of custom duty of 75%.
8.3. It is further submitted by Shri Oza, learned counsel for the department that therefore, from the aforesaid it cannot be said that the issue involved in the appeals is having relation to the rate of duty of custom or to the value of the goods for the purpose of assessment. It is submitted that all other issues raised by the importer are consequential and has nothing to do with the dispute with respect to rate of duty or the value of the goods for the purpose of assessment. It is submitted that therefore, the appeals before this Court against the impugned judgment and order passed by the learned Tribunal would be maintainable before this Court under Section 130 of the Customs Act and not before the Hon'ble Supreme Court as contended on behalf of the importer.
8.4. Shri Oza, learned counsel for the department has further submitted that one of the main contention on the behalf of the department in the present appeals is that order passed by the learned Tribunal is a non speaking order and / or order without reasons and therefore, the aforesaid has nothing to do with the question having relation to the rate of duty of the custom or the value of the goods for the purpose of assessment. It is submitted that therefore, also the present appeals before this Court on the aforesaid question would be Page 11 of 19 C/SCA/25086/2006 CAV JUDGEMNT maintainable before this Court alone.
8.5. Shri Oza, learned counsel for the department has heavily relied upon the following decisions of the Hon'ble Supreme Court as well as other High Courts in support of his submissions with respect to maintainability of present appeals before this Court under Section 130 of the Customs Act.
[1]. Navin Chemicals MFG & Trading Co. Ltd vs. Collector of Customs reported in 1993(68) ELT 3 (SC).
[2]. Commissioner of Central Excise, Bangalore vs. Srikumar Agencies reported in (2009) 1 SCC 469.
[3]. New India Assurance Company Limited vs. M/s. Zuari Industries Limited reported in (2009) 9 SCC 70.
[4]. Commissioner of C.Ex. DelhiIV vs. Orient Steel Industries reported in 2010(254) ELT 630 ( P & H).
[5]. Commissioner of Customs, Tuticorin vs. Edhayam Frozen Foods reported in 2008 (230) ELT 225 (Mad).
[6]. Anil Products Limited vs. Commissioner of C.Ex., Ahmedabad II reported in 2010(257) ELT 523 (Guj).
[7]. Commissioner of Central Excise & Customs vs. Chandubhai Shiroya reported in 2009(234) ELT 24(Guj).
8.6. Making above submissions and relying upon the above decisions, it is requested to hold that the present appeals preferred by the department under Section 130 of the Customs Act, against the impugned judgment and order passed by the learned Tribunal would be maintainable before this Court.
9.0. Heard the learned advocates for the respective parties at length on the preliminary objection raised by the learned counsel for the Page 12 of 19 C/SCA/25086/2006 CAV JUDGEMNT importer with respect to maintainability of the present appeals under Section 130 of the Customs Act against the impugned judgment and order passed by the learned Tribunal before this Court.
10. While considering the aforesaid preliminary objection, the issues involved in the present appeals and the questions raised are required to be considered.
11. In the present case the importer imported consignments of the Crude Palm, Oil which arrived at the port on 3.7.2004. The representative sample of imported Crude Petroleum Oil were drawn on board and thereafter the goods were discharged from the vessel. After discharge of the goods, representative samples were again drawn on 7.7.2004 and sent for test. It is submitted that in the present case in terms of serial no. 34 Notification no.21/02 Cyus dated 1.3.2002, as amended vide Notification No.120/03 Cus dated 1.8.2003, Crude Palm Oil attracted concessional rate of Basic Customs Duty of 65% if total carotenoid (as beta carotene) is in the range of 5002500 mg/kg. If the above requirement is not met, the Crude Palm Oil would be classifiable under Heading 151190.90 of the Customs Tariff Act, 1975 attracting higher rate of customs duty of 75%. It is submitted that thus to earn the exemption in terms of the above Notification Crude Palm must contain carotenoid in the range of 5002500 mg/kg. It is submitted that in the present case the result of the samples drawn on board on 3.7.2004 and from shore tanks on 7.7.2004 showed the carotenoid as 580.5 mg/kg and 791.7 mg/kg respectively. It is submitted that as such based on some intelligence report Revenue Authorities again drew the samples of the goods lying in the shore tanks on 3.8.2004 and the test report dated 10.8.2004 issued by the Customs Laboratory at Kandla in respect of these samples revealed the carotenoid's value as 436.65 mg/kg and Page 13 of 19 C/SCA/25086/2006 CAV JUDGEMNT therefore, it was believed that beta carotene contents being less than 500 in terms of the above test report, the consignment of Crude palm Oil was not entitled to the benefit. It is further submitted that even according to the department the remnant of the samples drawn were subsequently sent to Central Revenue Control Laboratory, New Delhi and the result dated 22.9.2004 showed carotenoid contents as 436.8 mg/kg. It is submitted that according to the importer the content of carotenoid was between 5002500 mg/kg i.e. 580.5 mg/kg and 791.7 mg/kg respectively and therefore, they are entitled to benefit of the notification direction concessional rate of basic custom duty of 65%. On the other hand, relying upon the report of the Central Revenue Control Laboratory, New Delhi and Laboratory at Kandla on the basis of samples drawn all the goods lying in the shore tank on 3.8.2004 the contents of carotenoid is found less than 500 i.e. 436.65 mg/kg and therefore, importer is not entitled to benefit of the notification of directing concessional rate of basic duty and therefore, they are liable to pay higher rate of custom duty of 75%.
11.1. That by impugned judgment and order, the learned Tribunal has relied upon the report of the private Laboratory in holding that the carotenoid content in Crude Palm Oil will be reduced by passage of time and has not relied upon the report of CRC, New Delhi whch revealed the caroteniod's value as 436.65 mg/kg. While admitting the present appeals, this Court has framed the following substantial question of law.
"A. Whether or not Tribunal has erred in relying upon the report of the private Laboratory in holding that carotene content in Crude Palm Oil will be reduced by passage of time, whereas CRCL New Delhi informed that the Standard Technical Literature do not find mention about the degradation / reduction of carotenoid content (as beta carotene) due to passage of time, change in atmosphere condition and temperature ?
B. Whether or not benefit of Notification No. 21/2002 Cus dated Page 14 of 19 C/SCA/25086/2006 CAV JUDGEMNT 1.3.2002 as amended would have been granted to the respondents, ignoring the test report of the Chemical Examiner and the Chief Chemist of the Government and relying upon the test opinion of the private laboratory?"
11.2. It is required to be noted that as such there is no dispute that if total carotenoid oil ( as beta carotene) is found to be in the range of 5002500 mg/kg in the very Palm Oil it attracts concessional rate of basic custom duty of 65% and if the above requirement is not met, the Crude Palm Oil would be classified under Heading 151190.90 of the Customs Tariff Act attracting higher rate of customs duty of 75%. Thus, as such there is no dispute with respect to rate of duty at all. At the cost of repetition, it is to be observed that the question involved is whether in the Crude Palm Oil content of carotenoid ( as beta carotene) is less than 500 as contended on behalf of department or above 500 as contended on behalf of importer. Under the circumstances, as such it cannot be said that in the appeals any question arise in relation to the rate of duty of custom or to the value of the goods for the purpose of assessment. Considering the aforesaid facts and circumstance of the case, it cannot be said that the question involved in the appeals has a direct and proximate relationship to the rate of duty and to the value of goods for the purpose of assessment. Section 130 of the Customs Act which makes provision for "appeal to High Court" lays down that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal (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 purpose of assessment), if the High Court is satisfied that the case involves a substantial question of law. Section 130E of the Customs Act which provides for "Appeal to Supreme Court" inter alia lays down that an appeal shall lie to the Supreme Court from any order passed by the Appellate Tribunal Page 15 of 19 C/SCA/25086/2006 CAV JUDGEMNT relating, amongst other things, to the determination of any question having a relation to the rate of duty of customs or at the value of the goods for the purpose of assessment.
12. While considering the expression "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" as mentioned in Section 129 of the Customs Act. The Hon'ble Supreme Court in the case of Navin Chemicals MFG & Trading Co. Ltd (supra) has observed in para 7 as under:
"7. The controversy, therefore, relates to the meaning to be given to the expression 'determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment'. It seems to us that the key lies in the words 'for purposes of assessment' therein. Where the appeal involves the determination of any question that has a relation to the rate of customs duty for the purposes of assessment that appeal mast be heard by a Special Bench. Similarly, where the appeal involves the determination of any question that has a relation to the value of goods for the purposes of assessment, that appeal must be heard by a Special Bench. Cases that relate to the rate of customs duty for the purposes of assessment and which relate to the value of goods for the purposes of assessment are advised treated separately and placed before Special Benches for decision because they, more often than not, are of importance not only to the importers who are parties thereto but also to many other importers who import or propose to import the same or similar goods. Since the decisions of CEGAT in such matters would have wide application they are, by the terms of the statute, to be rendered by Special Benches. The phrase 'relation to" is, ordinarily, of wide import but, in the context of its use in the said expression in Section 129C, it must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for the purposes of assessment.
13.. In the case of M/s. Zuari Industries Limited (supra), the Hon'ble Supreme Court occasioned to consider as to the meaning of Page 16 of 19 C/SCA/25086/2006 CAV JUDGEMNT "proximate cause". In para 22 of the Hon'ble Supreme Court has observed and held as under:
"22. Apparently there is no direct decision of this Court on this point as to the meaning of proximate cause but there are decisions of foreign Courts and the predominant view appears to be that the proximate cause is not the cause which is nearest in time or place but the active and efficient cause that sets in motion a train or chain of events which brings about the ultimate result without the intervention of any other force working from an independent source."
13.1. Under the circumstance, it cannot be said that the issue / question involved in the appeals has in direct or proximate relationship to the rate of duty and to the value of goods for the purpose of assessment.
14. The submissions made by Shri Raval, learned counsel for the importer that the basic controversy between the parties is that as per the importer the subject goods are liable to be classified under Chapter Heading 1511 1000 attracting concessional duty at the rate of 65% and therefore, it can be said that there is a dispute with respect to rate of duty and therefore, the appeals before this Court under Section 130 of the Customs Act would not be maintainable seems to be attractive but has no substance. It is required to be noted that the dispute is with respect to percentage of 65% to 75% whether it is less 500 mg/kg or above 500 kg/mg and consequently whether subject goods attracts concessional duty at the rate of 65% or not. Similarly, the submission on behalf of the importer that there is dispute with respect to the value of the goods for the purpose of assessment and according to the importer the value of the subject goods for determination of the duty being tariff value fixed is US$ 504 PMT and therefore, the said question would be with respect to value of the goods for the purpose of Page 17 of 19 C/SCA/25086/2006 CAV JUDGEMNT assessment and therefore, the appeals before this Court under Section 130 of the Customs Act would not be maintainable also seems to be attractive but has no substance. All the aforesaid questions are as such not arising directly. As stated above, the main issue is with respect to percentage of 65% in the imported goods Crude Palm Oil and which report should be considered and believed. Under the circumstance, none of the decisions relied upon by the learned counsel appearing on behalf of the importer would be of any assistance to the importer and / or would be applicable to the facts of the case on hand.
14.1. It is also required to be noted that it is the specific case on behalf of the department that impugned order passed by the Tribunal is a non speaking and unreasoned order. The aforesaid question is certainly required to be considered in the appeals and the aforesaid cannot be said to be any question related to the duty and / or classification. In the case of Anil Products Limited (supra) the Division Bench has held that the grievance that the despite the various submissions and several judgments relied upon, the same not considered in true prospective, the Tax Appeals before this Court would be maintainable if the Court concentrated the above question only leaving question of classification. In the case of Chandubhai Shiroya (supra) the Division Bench of this Court has observed and held that the Tribunal order being amenable to statutory appeal before the High Court, if determination of correctness or otherwise its order not possible for appellate forum when reasons are absent.
14.2. Now, so far as reliance placed upon the decision of the Division Bench of this Court in the case of Adani Exports Ltd (supra) by the learned counsel appearing on behalf of importer, it appears that in the said decision High Court specifically observed and held that Page 18 of 19 C/SCA/25086/2006 CAV JUDGEMNT controversy involved in the case directly relates to the question of determination of rate of duty of customs and therefore, it was held that the appeal was not maintainable before the High Court.
14.3. Now, so far as reliance placed upon the decision of the in the case between Commissioner of Customs and M/s. Ruchi Soya Industries Limited in CSTA No. 1 of 2006, it is required to be noted that as such the High Court decided case on merits and not on the ground of jurisdiction.
15. In view of the aforesaid facts and circumstances of the case and the substantial question raised in the appeals and controversy / issue involved in the appeals, we are of the opinion that against the impugned judgment and order passed by the learned Tribunal present appeals before this Court under Section 130 of the Customs Act would be maintainable. Accordingly, preliminary objection raised by the learned counsel appearing on behalf of the importer is hereby overruled and is held against the importer and in favour of revenue. Now, matters to be considered on merits. Registry is directed to notify the appeals as well as present Special Civil Application for final hearing before appropriate Court taking up such matters.
sd/ (M.R.SHAH, J.) sd/ (MS SONIA GOKANI, J.) Kaushik Page 19 of 19