TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 267
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....ication and self assessment of exported goods. Consequent to investigation a show cause notice dated 03.09.2014 was issued proposing to reject the classification claimed by the Appellant under CTH 73261990 and to classify the same under 84829900 of Customs Tariff Act, 1975 . It was also proposed to recover excess drawback claim. Goods exported by the Appellant was proposed to be confiscated as per the provisions of Section 113(ii) of Customs Act, 1962. It was also proposed to impose penalty on Appellant under Section 114(iii)/114AA of the Customs Act, 1962.The Adjudicating authority vide OIO dated 23.11.2016 decided the case and re-classified the goods under the proposed classification and sr. number of drawback schedule and held the goods liable for confiscation and imposed redemption fine; ordered recovery of excess drawback; imposed penalty on the Appellant and Shri A Philip Mathew, Vice president of Appellant. Being aggrieved Appellants filed appeals before the Commissioner (Appeals) who vide impugned order rejected the Appeals of Appellant and upheld the OIO dated 23.11.2016. Hence the Appellants are before us. 2.1 Another second show cause notice dated 16.03.2017 was also is....
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....late Tribunal if such order relates to classification of exported goods and the main controversy and/or the principal question involved in orders of the Commissioner (Appeals) was the classification of the exported goods. The first proviso to Section 129A of the Customs Act, when strictly construed, excludes only those cases where appeal was filed against order of the Commissioner (Appeals) relating to payment of drawback as provided in Chapter-X and the rule made thereunder. Recovery of Drawback already sanctioned and paid is different from payment of drawback. 4.1 He contends that while considering the jurisdiction of a forum for entertaining an appeal, the main controversy and/ or the principal question is required to be addressed, and not the consequence or the outcome of determination of the main controversy and/or the principal question. He placed reliance on the following judgments:- * Asean Cableship PTE. Ltd. 2022(380) ELT 4 (SC) * CC Vs. Motorola (India) Ltd. 2019(368)ELT 3 (SC) * United India Insurance Company Ltd. Vs. Ajay Sinha and other 2008 (7) SCC 454 * State of Chhattisgarh & Anr. Vs. Chandra Bhan Singh & Other -AIR 2014 Chhattisgarh 6 * Marvel Appearels....
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....s required to be answered first before dealing with the merit of the appeal.We have seen the provision of Section129A of the Customs Act, 1962 which are also reproduced here as under : "SECTION129A. Appeals to the AppellateTribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under Section 128A; (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under Section 130, as it stood immediately before that day : Provided that no appeal shall lie to the AppellateTribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, - (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at the....
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....pinion that the appeal filed by the appellants before the Tribunal is maintainable in view of the fact that the cause of action in the present matter is relating to the classification of goods.We find that in the impugned order, the Ld. Commissioner (Appeals) has examined the first and primarily issue whether the appellant's goods is classified under Chapter heading 73261600 or 84829900 and held that appellant's goods are classified under chapter heading 84829900 and therefore, dismissed their appeals. In the present matter Ld. Commissioner (Appeals) has first decided the classification issue. Therefore, in the present matter principal question for deciding the matters is "Classification of Goods" and Tribunal have jurisdiction to decide the classification issues. In this circumstances, we hold that, in terms of Section 129A, the present appeals are maintainable before the Tribunal. 5.1 We note that Section 130 of Customs Act provides for an Appeal to the High Court from every order passed by the Appellate Tribunal. Such tax appeal is, however, not maintainable against an order relating among other things, to the determination of any questing having a relation to the rate of duty ....
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....'ble Supreme Court from an order passed by the Appellate Tribunal relating, amongst other things, to the determination of any question having a relation to the rate of duty of the customs or to the value of case for purposes of assessment. It is submitted that in the present case the principal issue is the rate of duty applicable on imported stores on the vessel AE. It is submitted that as per Section 87 of the Act any imported stores on board a vessel or aircraft (other than stores to which Section 90 applies) may without payment of duty, be consumed thereon as stores during the said period such vessel or aircraft is a foreign-going vessel or aircraft. It is submitted that therefore if the stores are eligible to the exemption under Section 87 of the Act as claimed by the petitioner, the duty on imported stores will be NIL, and if not, (as per the case of the Customs Department), it will be applicable rate of duty. It is submitted that therefore, the dispute can be said to be having a relation to the rate of duty for the purpose of assessment and hence against the order passed by the CESTAT, holding that the petitioner is not liable to pay any duty applying Section 87 of the Act, a....
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....e order passed by the High Court, this Court observed and held that neither any question with respect to determination of rate of duty arises nor a question relating to valuation of the goods for the purposes of assessment arises and the appeals also do not involve determination of any question relating to the classification of goods. By observing so, this Court observed that the High Court was not justified in holding that the appeals were not maintainable under Section 130(1) of the Act but were tenable before the Supreme Court under Section 130E of the Act. 6. Therefore, in the facts and circumstances of the present case the High Court is right in observing that the principal question in the present case is not in relation to the rate of duty but determining whether vessel AE is a foreign-going vessel or not, and if the vessel AE is a foreign-going vessel, Section 87 of the Act will be applicable or not. Therefore, with respect to such an issue, against the order passed by the CESTAT, the appeal would be maintainable before the High Court under Section 130 of the Act. We are in complete agreement with the view taken by the High Court. 5.2 Thus, we find force in argument of l....
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....subjected to various processes and incomplete shape, would cover under the Chapter 73. Sub-heading No. 7326 of CTA cover other articles of Iron and Steel including forged and stamped, but not further worked. The disputed product of Appellant also unfinished and the same is also clear from the Chartered Engineer's Certificate dated 18.07.2017 produced by the Appellant, wherein he clearly certified that Appellant uses Round Bars/Rods of Alloys Steels as their raw material, and such round bars/ rods are heated at appropriate temperature in induction bar heater and cut according to required size. The cut pieces are then subjected to forging process using power press machine by 3 different strokes for upsetting, punching and piercing which is known as rough forged ring. The process of annealing carried out in Electric /gas furnace and thereafter issued for short blasting if required. Thereafter, the process of proof machining is being done. Further, the said rings are machined on CNC machines. Alloys steel forged Machined rings which are to be further subjected to heat treatment, grinding, super finishing (like honing and lapping) processes are to be done at buyers end to convert into b....