Case Law Details
Commissioner of Customs II JNPT Vs Axiom Cordages Ltd. (Bombay High Court)
Impugned order of CESTAT and the appeal memo clearly indicates that the main controversy which arises for determination is in the nature of classification dispute, which relates directly and proximately to the rate of duty applicable for the purpose of assessment and therefore the appeal would lie only before the Hon’ble Supreme Court of India.
Mr.Mishra submitted that the issue here is of the levy or payment of duty. But to determine whether there has been short levy of duty, certainly, without deciding on the classification of goods how can be the department decide what was the duty to be levied and whether it has been properly paid or there has been a short payment. Mr. Mishra relied upon judgment of Venus Enterprises vs. Commissioner of Customs, Chennai6 and submitted that the law is well with the show cause notice under the provisions of Section 28 of the Act for payment of customs duty not levied or short levied or erroneously refunded can be issued subsequent to the clearance of the goods under Section 47 of the Act. Certainly we do not have any quarrel on this proposition suggested by Mr.Mishra. That is not the issue in the case at hand. To decide whether there is short levy, certainly there has to be a determination on the classification of goods. In fact, in Venus Enterprises (supra) relied upon by Mr. Mishra in paragraph no. 6 it is observed “In view of the clear finding with regard to the mis-declaration and suppression of value, which led to the under-valuation and proposed short-levy of duty …..”. That also indicates that to decide whether there has been a short levy of duty, classification is required.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. Appellant is aggrieved by an order dated 11th September, 2020 passed in Customs Appeal No. 85078 of 2019 by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Branch, Mumbai (CESTAT). In the appeal filed, following three substantial questions of law were proposed.
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