TaxTMI 
TaxTMI 
2015 (8) TMI 995
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.... under the new policy has been fulfilled. 2. The appellant submits that the following substantial questions of law are involved in this case : (a) Whether the amendment to Notification No. 28/97, dated 1-4-1997 vide Notification No.29/2004, dated 28-1-2004 can be given retrospective effect for the purpose of fulfilment of the export obligation as required under the Original Notification No. 28/97 which was required to be fulfilled upto 30-7-2000 as per EXIM Policy 1992-1997. (b) Whether the Tribunal is correct in holding that since the amendment in the original Notification No. 28/97 has made by way of "substitution" through Notification No. 29/2004, dated 20-1-2004 hence it has retrospective effect, when the said amendment was carried out to give effect to the amendments made in the EXIM Policy 2002-2007 vide Policy Notification No. 28 (RE-2003) 2002-2007, dated 28-1-2004 issued by the DGFT, Ministry of Commerce, Govt. of India. 3. However, the learned Counsel appearing for the respondent has, at the outset, raised the preliminary objection on the maintainability of this appeal in this Court in view of the exclusion pro....
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....00, dated 4-5-2000, the respondent filed an appeal to the Commissioner (Appeals) who, by the Order-in-Appeal No. 28 (KDT) Cus/JPR/2000, dated 4-8-2000, remanded the matter to the Deputy Commissioner for de novo consideration, in the light of certificate issued by the DGFT. However, even after de novo consideration, the Deputy Commissioner, by the Order-in-Original No. 2/2000, dated 27-11-2000, confirmed the duty demand of Rs. 1,02,32,963/- while holding the respondent liable to pay whole of the duty of Customs leviable on the goods imported on the grounds that it had not fulfilled the export obligation in the proportion prescribed under condition No. 2 of the said Notification No. 28/97; had also failed to produce any evidence regarding fulfillment of export obligation within the time period prescribed under condition No. 3 of the said Notification: and had also failed to discharge a minimum of 25% of the export obligation prescribed for any particular year for three consecutive years. The respondent, again, preferred an appeal against the above referred Order-in-Original to the Commissioner (Appeals-I) who rejected the same by the Order-in-Appeal No. 31(SN) Cus/JPR-1/2004, dated 1....
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....ngalore Refineries & Petrochemicals Ltd. - 2011 (270) E.L.T. 49 (Kar.); Commissioner of Customs. Bangalore v. Motorola India Ltd. - 2012 (275) E.L.T. 53 (Kar.); Commr. of Cus. & C. Ex., Goa v. Primella Sanitary Products (P) Ltd. - 2002 (145) E.L.T. 515 (Bom.) and Commissioner of C.Ex., Ludhiana v. A.S.T. Paper Mills Ltd. - 2008 (227) E.L.T. 189 (P & H). 12. Per contra, it is submitted on behalf of the appellant that on the facts and in the circumstances of the case, the essential question arising for consideration is as to whether the amendment to Notification No. 28/97-Cus., dated 1-4-1997 by Notification No. 29/2004-Cus., dated 28-1-2004 could be given retrospective effect for the purpose of fulfilment of export obligation as was required under the Original Notification No. 28/97; and for such a question, the appeal cannot be held not maintainable in this Court. 13. Having given a thoughtful consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the preliminary objection deserves to be upheld; and this appeal deserves to be dismissed as not maintainable. 14. The referred provisi....
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....ds or to the val­ue of the goods." 16. In the case of Motorola India (supra), the Hon'ble Karnataka High Court, in a matter arising out of Customs Act, 1962, proceeded to dilate on the phrase "determination of any question having a relation to the rate of duty" and observed that such expression would mean determination of the questions as to whether (i) any goods are dutiable; (ii) rate of Customs duty on any goods is nil; (iii) the goods are covered under particular notification or order issued by Central Government or C.B.E. & C. granting total or partial exemption from duty; and (iv) value of any goods for assessment be enhanced or reduced by matters specifically provided under the Act. In the said case, the issue as to whether the importer had complied with the terms and conditions of Notification No. 30/97-Cus., was held to be related to the determination of rate of duty; and the appeal against the decision of the Tribunal was held maintainable before the Supreme Court and not before the High Court. 17. As regards the provisions of Section 35G of the Central Excise Act, 1944 ('the Act of 1944'), which are in pari materia the provisions with which we are concern....
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....preme Court and not to the High Court. 19. In the case of Primella Sanitary Products (supra), in relation to the dispute as to whether the assessee was eligible to exemption notification upon fulfillment of conditions therein was held to be a dispute relating directly to the rate of duty applicable and reference to High Court under Section 35H of the Act of 1944 was held not maintainable by the Hon'ble Bombay High Court. In A.S.T. Paper Mills (supra), a similar view has been expressed by the Hon'ble Punjab & Haryana High Court under Section 35G of the Act of 1944 while relying, inter alia, on the decision in Navin Chemicals (supra) that the question as to whether assessee is covered by an exemption notification or not, directly relates to the rate of duty of Excise; and for determination thereof, the appeal has to be filed before the Supreme Court under Section 35L of the Act of 1944. 20. Coming to the facts of the present case, it could be noticed at once that even if the appellant has raised the question as to whether Notification No. 29/2004-Cus., dated 28-1-2004 could be given retrospective effect for the purpose of fulfillment of export obligation under the Origina....