By TIOL News Service

CHENNAI, AUG 24, 2017: THIS is a Revenue appeal challenging the CESTAT order dated 15.10.2015 -  2016-TIOL-124-CESTAT-MAD

The Tribunal had inter alia held thus -

Customs - Appellant imported 'unbranded jewellery' by assessing Bill of Entry under Notification No.2/2011-CE dt. 1.3.2011 and paid CVD at 6% - Subsequently, they preferred appeal claiming CVD under the Notification No. 12/2012-CE chargeable @ 1% - Commissioner(A) denying benefit holding that it is a conditional Notification and the condition that no Cenvat Credit should have been taken was not fulfilled at the time of imports - appeal to CESTAT wherein Appellant submitted that they are only traders and not manufacturers and as such no Cenvat credit could have been taken by them at all - Revenue contends that appellant themselves paid CVD @ 6% under Notification No. 2/2011-CE and never disputed either assessment or rate of duty nor paid the duty under protest whereas claimed benefit of the notification only before Commissioner (A) Held: When the credit is not admissible under the Rules, question of fulfilling the condition does not arise - Moreover, when there are two notifications, it is open to appellant to claim the exemption which is beneficial to them - If they have not claimed the benefit before assessing officer, there is no bar in claiming before appellate authority and have rightly claimed so, since Bill of Entry itself is an assessment order - In view of the precedents, appellant is eligible for CVD @ 1% under the Notification - Appeal allowed: CESTAT

A preliminary objection was raised by the respondent as regards the maintainability of the present appeal.

It is submitted that the High Court does not possess the requisite statutory jurisdiction to adjudicate upon the substantial questions of law raised by the Revenue in the light of the provisions of section 130 of the Customs Act.

Inasmuch as the issue in the present case directly impinges on the determination of a question having a relation to the rate of duty of excise and thus cannot be considered by the High Court.

Reliance is placed on the decisions in Navin Chemicals Manufacturing and Trading Company Ltd. - 2002-TIOL-460-SC-CUS and Harichand Sri Gopal -  2010-TIOL-95-SC-CX-CB .

The High Court observed -

++ Sub-section (1) of section 130 uses the expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment'. In the present case, the issue for consideration is, simply put, whether the assessee is to be called upon to pay 6% or 1% duty. The satisfaction of conditions for eligibility to claim the concessional rate is a mere factor relevant to determine the actual liability.

Adverting and placing reliance on the apex court decisions cited by the respondent, the High Court noted that the case laws cited by the Revenue were inapplicable to the case on hand and concluded -

"…In the present case, the issue that was formulated as the 'lis' between the parties was the applicable rate of duty to the transaction at issue. In fact as we have noted earlier, the CESTAT had framed the issue before it as falling within a narrow compass involving the question of whether CVD was chargeable at 6% or 1%. This then is the direct and proximate cause."

The Revenue appeal was dismissed as non-maintainable.

(See 2017-TIOL-1635-HC-MAD-CUS )