- (1.) The Commissioner of Customs, Jodhpur, headquarters at Jaipur seeks to maintain this appeal under section 130(1) of the Customs Act, 1962 ("the Act"), against the order dated October 7, 2008, passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi ("the Tribunal") in Customs Appeal No. 716/2007 whereby, the Tribunal has, after upholding the order dated July 31, 2007 passed by the Commissioner (Appeals I), Customs and Central Excise, Jaipur to the effect that Notification No. 29/2004-Customs dated January 28, 2004 was retrospectively applicable in respect of the obligations of the respondent under the EPCG licence dated July 31, 1995, has remitted the question for consideration of the original authority as to whether the requisite export obligation under the new policy has been fulfilled. The appellant submits that the following substantial questions of law are involved in this case: (a) Whether the amendment to Notification No. 28/1997, dated April 1, 1997, vide Notification No. 29/2004, dated January 28, 2004 can be given retrospective effect for the purpose of fulfillment of the export obligation as required under original Notification No. 28/1997 which was required to be fulfilled up to July 30, 2000 as per the Exim Policy 1992-97? (b) Whether the Tribunal is correct in holding that since the amendment in the original Notification No. 28/1997 has been made by way of "substitution" through Notification No. 29/2004, dated January 20, 2004 hence it has retrospective effect, when the said amendment was carried out to give effect to the amendments made in the Exim Policy 2002-07, vide policy Notification No. 28(RE-2003)2002-07, dated January 28, 2004 issued by the DGFT, Ministry of Commerce, Government of India?
(2.) However, the learned counsel appearing for the respondent has, at the outset, raised the preliminary objection on the maintainability of this appeal in this court in view of the exclusion provided in sub-section (1) of section 130 of the Act. We have heard the learned counsel for the parties on the objection so raised and have examined the record with reference to the law applicable.
(3.) The relevant facts and background aspects could be taken into comprehension as follows: The respondent, M/s. Shri Ram Rayons (A unit of D.C.M. Shri Ram Industries Ltd.), Kota is engaged in the manufacture of rayon tyre cord and rayon tyre cord fabrics. An export promotion capital goods ("EPCG") scheme license No. 2134468 was issued to the respondent by the Director General of Foreign Trade ("DGFT") on July 31, 1995 for import of complete plant for viscose rayon yarn spinning (second hand) with an obligation to export rayon tyre yarn worth US $ 1,53,96,513 on FOB basis within a period of five year from the date of issue of licence.;