TaxTMI 
TaxTMI 
2020 (3) TMI 1155
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....9.2019 had placed reliance upon a decision of this court in Commissioner of central excise v. JBF Industries Ltd., 2011 (264) ELT 162 (Guj.); however, on 05.09.2019, the Supreme Court has rendered a decision in the case of Commissioner of Customs, Bangalore - 1 v. M/s Motorola India Ltd. passed in Civil Appeal No.10083 of 2011, holding an observing inter alia as under: "16. We are of the considered view that the Legislature has carved out only following categories to which it has intended to give a special treatment of providing an appeal directly to this court. (i) determination of a question relating to a rate of duty; (ii) determination of a question relating to the valuation of goods for the purpose of assessment; (iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; (iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for." 3. It is the case of the applicant that the above decision of the Supreme Court was inadvertently not brought to....
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.... qualified for exemption under the notification is the core issue involved in this case, which is a question which is directly related to the rate of duty and hence, appeal against the order of the Tribunal would lie before the Supreme Court and not before this court. 5.3 In support of his submission, the learned counsel placed reliance upon the decision of the Punjab and Haryana High Court in Commissioner of Central Excise, Panchkula v. Special Machine, 2009 (242) ELT 330 (P&H) wherein the court held thus: "10. Having heard learned counsel for the parties and perusing the paper book with their able assistance we are of the considered view that there is merit in the preliminary objections raised by the assessee-respondent regarding maintainability of the appeal. A similar controversy whether an assessee is covered by an exemption notification relating to rate of duty or not came up for consideration before a Division Bench of this Court in the matter of Commissioner of Central Excise, Ludhiana v. A.S.T. Paper Mills Ltd., 2008 (227) E.L.T. 189 (P&H). The Division Bench after discussing the matter in detail, especially in the light of judgment of Hon'ble the Supreme Court....
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....poses 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 129-C, 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. 8. Before we consider whether the case of the appellant fails within the said expression, we m....
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.... issue. Explanation - For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question.- (a) relating to the rate of duty for the time being in force, whether under the Customs Tariff Act, 1975 (51 of 1975), or under any other Central Act providing for the levy and collection of any duty of customs, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods fall under a particular heading or sub- heading of the First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975), or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or (d) whether the value of any goods for the purposes of assessment of duty shall be enhanced or reduced by the addition or reduction of....
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....uty applicable to the goods or to the value of the goods." (emphasis supplied) 16. The said judgment squarely applicable to the facts of this case. The issue as to whether the appellant would be entitled to the benefit of exemption Notification is a matter, which can be decided only by the Hon'ble Supreme Court. 17. The above said judgment has also been followed by the High Court of Madras in the case of Commissioner of Customs (Exports),Chennai Vs. D.S.Metal (P) Ltd., reported in 2015 (323) ELT 328. This Court after quoting the judgment in Navin Chemicals in paragraph Nos.5 to 7, observed as under:- 5. The present appeal is filed under Section 130 of the Customs Act and it is apposite to refer to Section 130(1) of the Customs Act, which reads as under : "130. Appeal to High Court (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after 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 purpose of assessment), if the High Court is satisfied that the....
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....ating to exclusion of jurisdiction of the High Court need to be understood. Section 35G(1) provides, among other things, 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 excise or to the value of goods for the purpose of assessment). The precedents noted above are rendered dilating on the concept of the term 'rate'. The question whether any particular transaction or goods is excisable is an issue directly linked to the question as to what would be the rate of duty of excise. If it is not liable for levy of excise duty, then it would be a case of 0% or 'nil'. The question of coverage is, thus a matter intrinsically linked with the determination of questions having a relation to the rate of duty of excise. Not only that, the phrase "any question having a relation to the rate of duty of excise" is part of the exclusionary clause in Section 35G(1). Reverting to Section 35L, we notice that clause (b) thereof provides for an appeal to the Supreme Court from any order passed by the Appellate Tribunal relating,....
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....nd have been exempted under levy to NCCD. 7. The Supreme Court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. vs. Collector of Customs, 1993 (68) E.L.T. 3 (S.C.) has held that a dispute as to classification of goods and as to whether or not they are covered by an exemption notification relates directly or proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question which relates directly and proximately to the value of goods for purposes of assessment. 8. The Punjab & Haryana High Court in the case of Commissioner of Central Excise, Panchkula vs. Special Machine, 2009 (242) E.L.T. 330 (P&H) has held that a dispute as to whether or not the assessee is covered by exemption notification, relates directly and proximately to the rate of duty applicable thereto for the purposes of assessment, and therefore the appeals would lie before the Supreme Court and not before the High Court. 9. The Bombay High Court in the case of Sterlite Optical Technologies Ltd. vs. Commissioner of Central Excise, Aurangabad, 2007 (213) E.L.T. 658 (Bo....
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....as no jurisdiction to entertain the appeal." 5.9 It was submitted that applicability of the notification would comprise of coverage, viz., scope of notification, namely, coverage of goods or manufacturers, identity of supplier. It was submitted that if there is a dispute as to whether conditions of a notification are satisfied or not, the same involves a determination in relation to the rate of duty. It was submitted that the question of coverage of notification is involved in this case as to whether it is only the respondent unit which is covered by the notification or even the other units. The applicability of the notification is also in issue as to whether the notification applies to job workers also or only to the principal manufacturer. It was submitted that whether exemption is admissible to manufacturer has multiple facets and if yes, what procedure should be followed. 5.10 The attention of the court was invited to paragraph 3 of the impugned order passed by the Tribunal wherein reference is made to the contents of the show cause notice dated 29.04.2010, to submit that the following questions were before the Tribunal. (1) Demand of duty was made from the Divis....
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....lated to the question of determination of rate of duty. It was submitted that the order dated 26.09.2019 passed by the court is in consonance with the principles enunciated by the Supreme Court in M/s Motorola India Ltd. (supra) and hence, no case is made out for review of the said decision. 6. Since reliance has been placed by the appellant on the decision of the Supreme Court in M/s Motorola India Ltd. (supra) for the purpose of filing the present review application, reference may be made to the relevant extracts thereof, which read as under: "2. A short question that arises for consideration in these appeals is as to whether an appeal from the order of Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to as the "CESTAT"), involving an issue regarding violation of conditions contained in customs exemption notification, would lie before the High Court under the provisions of Section 130 of the Customs Act, 1962 (hereinafter referred to as the "Customs Act") or to this Court under the provisions of Section 130E of the Customs Act." "9. Upon a conjoint reading of the aforesaid provisions, it could thus be seen that an appeal shall lie to th....
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....ose of assessment; (iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; (iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for." 7. It may be pertinent to note that while the sole ground for filing the present review application is that the decision of the Supreme Court in M/s Motorola India Ltd. (supra) could not be pointed out to the court at the time when it passed the order dated 26.09.2019 disposing of the appeals as not maintainable, neither have any averments been made in the application nor has the learned senior standing counsel for the applicant advanced any submissions as to how the said decision would be applicable to the facts of the present case. In the memorandum of application, the contents of paragraph 16 and 17 of the above decision have been reproduced and thereafter it has been stated thus: "4. It seems that the afore-referred decision of the Hon'ble Supreme Court was inadvertently not brought to the notice of this Hon'ble Court on 26....
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....face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court." 9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in conn....