TaxTMI 
TaxTMI 
2013 (1) TMI 127
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt . 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld." 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 applica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt 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 Ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne 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 n....