By TIOL News Service

AHMEDABAD, DEC 19, 2012: THE Writ petition is filed by the revenue questioning the legality of the judgment of the CEGAT, Mumbai dated 2.2.2001 wherein the CEGAT allowed the appeals of the respondent. The CEGAT, in its final order, decided the question of applicability or otherwise of concessional notification No.117/94 and ordered the duty demands and penalties were either deleted completely or partially. Aggrieved by the above order of the CEGAT, the revenue filed Writ Petition before the High Court of Gujarat.

++ The main contention of the respondents was that against the impugned judgment of the CEGAT, appeal under section 130E of the Customs Act, 1962 is available and such appeal would lie before the Supreme Court and that the present writ petition should not be entertained. The respondents also pleaded that para 16 of the judgment of the CEGAT deals with question of rate of duty was an issue before the CEGAT, which came to be decided in their favour.

++ The Revenue Representative contended that the writ petition is maintainable since the issue decided by the CEGAT cannot be stated to be one in relation to the rate of duty.

The High Court observed as –

It is undisputed that section 130E of the Customs Act provides for an appeal to the Apex Court against the judgment of the Tribunal under certain circumstances. From the above statutory provisions, it can be seen that any order passed by the Tribunal 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 purposes of assessment is appealable before the Apex Court. Under section 130A of the Customs Act, on the other hand, appeal against a decision of the Appellate Tribunal would lie at the hand of the Department against an order 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. Thus, it can be seen that in case of appeals against the judgment of the Appellate Tribunal which are competent before the Apex Court, no appeal would lie before the High Court.

Two questions need to be gone into. Firstly, is the decision of the CEGAT in the present case such where appeal would be maintainable before the Apex Court under section 130E of the Act and if so, in such a situation, should the writ petition at the hands of the Department be entertained.

In para 16 of the impugned judgment, the CEGAT decided the question of applicability or otherwise of concessional notification No.117/94 . From the above, it can be seen that one of the several issues which the CEGAT decided by the impugned judgment pertained to the applicability or otherwise of a notification prescribing concessional rate of duty.

In this respect, we may refer to a decision of the Apex Court in the case of Raj Kumar Shivhare (2010-TIOL-29-SC-FEMA), pointed out to us by the counsel for the respondents. In the said decision, the Apex Court emphasized that where statutory appeals are available, writ petition should normally not be entertained avoiding such alternative remedy.

Had the question been of an appeal being maintainable before the High Court in terms of section 130A of the Customs Act, at this point of time, after the petition was admitted long back, we would not have perhaps refused to entertain the petition on merits since bar of entertainment of writ petition when alternative remedy is available is one of discretion. In the present case, however, statutory appeal lies before the Apex Court. Statute excludes the jurisdiction of the High Court from entertaining such an appeal. In a recent decision, the Apex Court in the case of Union of India v. Guwahati Carbon Ltd., (2012-TIOL-119-SC-CUS) disapproved the practice of entertaining a writ petition by the High Court when statutory appeal under section 35L of the Central Excise Act, 1944 lies before the Supreme court.

In a recent order dated 20th June 2012, passed in Special Civil Application No.13295 of 2004 and connected petitions, we had, taking note of the decision of the Apex Court in the case of Guwahati Carbon Ltd. (supra), refused to entertain the writ petitions.

By observing the above, the High Court dismissed the petition filed by the Revenue.

(See 2012-TIOL-1023-HC-AHM-CUS)