- (1.) THE Court: Against an order dated June 9, 2010, passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata in A -393/Kol/2010 ( : 2010 (258) E.L.T. 107 (Tri. - Kol.)), the Commissioner of Customs (Port) filed an appeal under Section 130 of the Customs Act, 1962. A Division Bench (to which one of us was a party) by order dated September 9, 2011 had dismissed the appeal on the ground that the case came within the purview of an order relating to determination of any question having a relation to the rate of duty of customs. The Division Bench was of the view that Section 130 of the Customs Act, therefore, is not attracted in view of Section 130(1) of the Act. The Division Bench while dismissing the appeal had made it very clear that it had not entered into the merits of the case and the dismissal of the appeal would not stand in the way of the appellant to seek appropriate remedy before the appropriate forum in accordance with law. Long thereafter the appellant preferred to file an application for review of the said order dated September 9, 2011 praying for setting aside of the order and for setting down the matter for a re -hearing.
(2.) MR . Bharadwaj, learned Counsel for the petitioner, has submitted that in general disputes arising under the Act are related, directly or indirectly, with the tax or other duties. Section 130 of the Customs Act provides for an appeal from an order of a Tribunal which is not an order determining any of the questions having relation to the rate of the duty of the customs or the value of the goods for the purpose of assessment. According to Mr. Bharadwaj, the question that really called for consideration before this Court was whether the imported duties are excisable and marketable and in the process the said item was liable for imposition of additional duty of customs under Section 3(1) of the Customs Tariff Act. Mr. Bharadwaj submits that the High Court had approached the whole matter from an improbable angle by holding that the dispute related to the rate of duty. According to him, in order to decide this, a basic exercise has to be undertaken, i.e., whether the item is excisable at all and its second stage will be necessary to consider, only if answer to the first is in the affirmative. Mr. Khaitan, learned Senior Counsel appearing for the respondent, has opposed this application by pointing out that the Act does not contain any provision for review in the Act. He, however, submits that even if review is maintainable, the case as made out by the petitioner does not answer the settled parameters within which an application of this sort is permitted. On merits, Mr. Khaitan argues that there is no mistake apparent on record for this Court to exercise the jurisdiction of review. According to him, the basic question which was decided by the Tribunal below was whether the imported goods were manufactured so as to attract the charge of excise duty at the rates specified in the Central Excise Tariff and secondly, additional duty of customs equal to such excise duty. Mr. Khaitan further submits that determination of any question have no relation to the rate of customs duty included within its determination of a question whether any rate of duty is attracted at all.
(3.) BOTH Mr. Bharadwaj and Mr. Khaitan have relied on different authorities in support of their respective cases.;