The main legal point established in the judgment is that in cases involving a classification dispute directly related to the rate of duty applicable for the purpose of assessment, the appellant should prefer an appeal before the Hon'ble Supreme Court of India under Section 130(E) of the Customs Act.

ORDER

1. Appellant is aggrieved by an order dated 11th September, 2020 passed in Customs Appeal No. 85078 of 2019 by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Branch, Mumbai (CESTAT). In the appeal filed, following three substantial questions of law were proposed.

QUESTION OF LAW

a. Whether Hon'ble CESTAT is right in holding that the issue of classification and other facets concerning exportation of subject goods had attained finality at the time of passing of the Order-in-Original?

b. Whether Hon'ble CESTAT is right in setting aside the Order-in-Original in so far it changed the classification of exported goods from CTH 56079090 to CTH 56074900?

c. Whether Hon'ble CESTAT is right in concluding that the charges of collusion, wilful misstatement, suppression of facts cannot be levelled against the applicant under section 28AAA of the Customs Act, 1962?

2. Today when the appeal was called out Mr. Mishra submitted re-framed substantial questions of law which read as under :

RE-FRAMED QUESTION OF LAW

a. Whether the Tribunal was right in holding that the order of assessment on which no appeal was preferred, cannot be re-opened by issue of Show Cause Notice under Section 124 read with Section 28 of the Customs Act?

b. Whether the Tribunal was right in holding that as no penalty is imposed on the Directors/CEO of the Respondent Company, no penalty can be imposed on the Respondent Company as well?

c. Whether the Tribunal was justified in limiting the scope of de-novo adjudication while remanding back the matter to the adjudicating authority?

3. Mr. Mishra states at the outset that appellant is abandoning the first two substantial questions of law proposed in the appeal memo (quoted in paragraph 1 above) and would request this court to include the re-framed substantial questions of law in addition to third question of law proposed (quoted in paragraph 1 above) in the appeal memo.

4. At the outset Dr. Kantawala raised a preliminary objection on the issue of jurisdiction of this court. Dr. Kantawala submitted that under Section 130(1) of the Customs Act, 1962 (the Act) an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal 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, if the High Court is satisfied that the case involves a substantial question of law. Dr. Kantawala submitted that where any order passed is against the order passed by the Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty or customs or to the value of goods for the purposes of assessment as provided under Section 130(E) of the Act, appeal shall lie to the Hon'ble Supreme Court of India. Dr. Kantawala submitted that the substantial questions of law originally proposed and the re-framed substantial questions of law indicate that the appeal is against the question relating to classification of goods which would mean determination of question in relation to the rate of customs duty of goods and therefore the appeal should be filed before the Hon'ble Supreme Court of India and not before this court.

5. Dr. Kantawala relied upon Sterlite Optical Technologies Ltd. vs. Commr. Of C. Ex. Aurangabad, 2007 (213) E.L.T. 658 (Bom.) Commr. Of Cus., C. Ex. & Service Tax vs. Jubilant Life Sciences Ltd., 2014 (306) E.L.T. 212 (All.) and Commr. Of C. Ex., Cus & Service Tax, Daman vs. Gandhi Fibres, 2011 (268) E.L.T. 354 (Guj) Commissioner Central Excise, Mumbai-V vs. Reliance Media Works Ltd., 2020 (372) E.L.T. 220 (Bom.) and APM Terminals India Pvt. Ltd. vs. Commissioner of C. Ex., NaviMumbai, 2019 (21) G.S.T.L. 26 (Bom.). Dr. Kantawala submitted that bare reading of the proposed questions, the impugned order of CESTAT and the appeal memo clearly indicates that the main controversy which arises for determination is in the nature of c