Commissioner of Customs (Port) Vs Enterprise International Limited (Calcutta High Court)
The Calcutta High Court considered an appeal filed by the Commissioner of Customs (Port) under Section 130 of the Customs Act, 1962 against an order of the Appellate Tribunal dated 9 May 2024. There was a delay of 26 days in filing the appeal. The Court accepted the explanation for the delay, condoned it and allowed GA 1 of 2024.
The appellant proposed substantial questions of law concerning liability to pay Anti-Dumping Duty (ADD) on seven Bills of Entry, rejection and redetermination of declared values in 26 Bills of Entry, violation of Section 28(9), setting aside of penalties imposed on the respondents, differential ADD on five Bills of Entry for want of evidence, differential ADD on two Bills of Entry on limitation grounds, and the Tribunal’s decision setting aside differential Customs duty allegedly arising from undervaluation.
The Court reproduced Section 130 of the Customs Act, 1962, which provides for appeals to the High Court from Tribunal orders involving a substantial question of law, subject to the statutory exclusions. The Court also reproduced Section 130E, which provides for appeals to the Supreme Court in specified circumstances, including judgments of the High Court delivered in appeals under Section 130.
Upon perusal of Sections 130 and 130E, the Court held that the present appeal should be preferred before the Supreme Court under Section 130E of the Customs Act, 1962.
Accordingly, the Calcutta High Court dismissed the appeal and the connected application. The Court also granted leave to the appellant’s advocate-on-record to obtain a certified copy of the Tribunal order from the department and replace the photocopy on record with the certified copy.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
The Court: We have heard learned advocates on either side.
There is a delay of 26 days in filing the appeal. We are satisfied with the explanation offered for not preferring the appeal within time. Therefore, the delay is condoned. The application being GA 1 of 2024 is allowed.
Learned counsel appearing for the appellant suggests the following substantial questions of law by filing the appeal under Section 130 of the Customs Act, 1962.
“i. Whether or not the respondent is liable to pay Anti-Dumping duty with respect of seven Bills of Entry ?
ii. Whether or not the value declared in 26 Bills of Entry are liable to be rejected and redetermined on the basis of prices of similar goods ?
iii. Whether the Learned Tribunal erred in law and on facts by passing the impugned order dated 9th May, 2024 by observing that the order in original dated 18-08-2023 is not sustainable for violation of conditions stipulated in Section 28(9) of the Customs Act, 1962 ?
iv. Whether the Learned Tribunal erred in setting aside the penalty imposed on all four respondents ?
v. Whether the Ld. Tribunal has erred in observing that differential ADD confirmed in respect of the 5 Bills of Entry in the impugned order is not sustainable as there is no evidence available to substantiate the allegation and also erred in observing that the differential ADD in respect of the 2 Bills of Entry in the impugned order is not sustainable on the ground of Limitation ?
vi. Whether the Ld. Tribunal is justified in setting aside the impugned order confirming the demand of differential Custom duty on account of undervaluation is not sustinable.
vii. Whether the impugned order passed by the Learned Tribunal is erroneous, perverse, and without considering the true facts relevant to the matter ?”
Section 130 of the Customs Act 1962 speaks of appeal to High Court which is quoted below:-
“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 the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.
(2) The [Principal Commissioner of Customs or Commissioner of Customs] or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be –
a. filed within one hundred and eighty days from the date on which the order appealed against is received by the [Principal Commissioner of Customs or Commissioner of Customs] or the other party;
b. accompanied by a fee of two hundred rupees where such appeal is filed by the other party;
c. in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.
[(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.]”
The Customs Act, 1962 also speaks of appeal to Supreme Court which is quoted below:-
“130E. Appeal to Supreme Court. – An appeal shall lie to the Supreme Court from –
[(a) any judgment of the High Court delivered –
a. in an appeal made under section 130; or
b. on a reference made under section 130 by the Appellate Tribunal before the 1st day of July, 2003;
c. on a reference made under section 130A,
in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or]
(b) any order passed [before the establishment of the National Tax Tribunal] by the Appellate Tribunal 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 purposes of assessment.
[(2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment.]”
On perusal of Sections 130 and 130E of the Customs Act, 1962 in our opinion, this appeal should be preferred before the Hon’ble Supreme Court under Section 130E of the Act.
The appeal and the connected application preferred by the department are dismissed.
Leave is granted to the learned advocate-on-record of the appellant to receive certified copy of the tribunal from the department and replace it with a photocopy of the same.
