AKIL KURESHI J. - (1.)APPELLANT, a ship-breaker, has challenged the judgment of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT for short) dated 10th March 2004, by virtue of which the Tribunal allowed the Revenue's appeal and set aside the order passed by the Appellate Commissioner.
(2.)THE appellant had purchased a ship MV Samrat Ashok from the Shipping Corporation of India through a public auction for a sum of Rs.11,63,00,000/-. The ship was purchased for breaking. The vessel was handed over to the appellant at Sikka where it was beached and from Sikka Port, the appellant brought the ship to Alang Ship Breaking Yard. In terms of the provisions of Customs Valuation Rules, 1988, the adjudicating authority initially determined the assessable value of the ship for the purpose of collection of customs duty. Such determination was in absence of details of cost of freight and insurance incurred for shifting the ship from Sikka to Alang Shipyard. On the basis of such determination, the adjudicating authority demanded customs duty of Rs.4,18,07,805/-. Subsequently, when the present appellant furnished the details of freight, insurance and other charges, the assessment was modified and the duty demand was revised to Rs.3,47,29,228/-.
Against such assessment and duty demand, the appellant preferred appeal before the Commissioner and sought refund of what according to the appellant was excess duty of Rs.8,99,884/-. The Commissioner, Appeals allowed the said appeal relying on the earlier decision of CESTAT in case of the very assessee. The Revenue carried the matter in appeal before the CESTAT challenging the order of the Appellate Commissioner. Such appeal was allowed by the judgment dated 10.3.2004. The Tribunal made the following observations :

"We find substance in the claim of the department that cost of transport upto the place of importation (i.e. Alang), handling charges and cost of insurance are required to be included in the transaction value in terms of Rule 9 of the Valuation Rules. We also agree with the Revenue that the Tribunal's order relied upon by the Commissioner (Appeals) is not applicable to the facts of the present case, as the question of inclusion of freight and insurance charges was not the subject matter for decision in the earlier case. Since the vessel was "imported at Alang" as the bill of entry for its final clearance was filed there, and not at Sikka, cost of transport and insurance from Sikka to Aland is required to be included in the transaction value. As a result, we set aside the impugned order and allow the appeal." It is this judgment of the Tribunal which the importer has challenged in this appeal. At the time of admission of the appeal, following substantial question of law was framed : "Whether, on the facts and in the circumstances of the case, the Customs, Excise & Service Tax Appellate Tribunal was justified in law in invoking Rule 9 of the Customs Valuation Rules, 1988 or whether Rule 7 of the said Rules would apply so as to exclude Rule 9 of the Rules ?"

When this appeal was taken up for final hearing, learned Senior Counsel Shri RJ Oza for the Department raised a preliminary objection contending that in view of the provisions contained in section 130E of the Customs Act, 1962, such appeal would be maintainable only before the Supreme Court and in that view of the matter, by virtue of the provisions contained in section 130 of the Act, this Court would have no jurisdiction to entertain such an appeal. In support of his contention, the counsel relied on the decision of the Apex Court in the case of Union of India v. Guwahati Carbon Ltd., 2012 (278) E.L.T. 26 (SC) and on the decision of a Division Bench of the Karnataka High Court in the case of Commissioner of Customs Bangalore, v. Motorola India Ltd., 2012 (275) E.L.T. 53 (Kar.).

(3.)ON the other hand, learned counsel Ms.Jani for the appellant opposed such preliminary objection contending that the appeal was admitted in the year 2005. Such a contention at this stage should not be allowed to be raised. She further submitted that the issue involved is whether the charges incurred by the importer for shifting the ship from Sikka to Aland Ship Breaking Yard should be included in the assessable value of the ship for the purpose of collection of customs duty. She submitted that the appeal would, therefore, be maintainable before this Court. In this context, she relied on the decision of the Apex Court in the case of Navin Chemicals Mfg. And Trading Co. Ltd. v. Collector of Customs, (1993) 4 SCC 320.
As is well known, section 130E of the Customs Act provides for an appeal to the Supreme Court in certain cases including against an order passed by the Appellate 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 the goods for the purpose of assessment. Correspondingly, under section 130 of the Customs Act, which pertains to appeals to the High Court, the High Court's jurisdiction to entertain any appeal against the order of the Appellate Tribunal is ousted when such order is one relating, among other things, to the determination of any question having any relation to the rate of duty of customs or to the value of goods for the purpose of assessment.