OD-6 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION ORIGINAL SIDE CUSTA/86/2024 IA NO.GA/1/2024 ATHERTON ENGINEERING CO. PRIVATE LIMITED VS THE COMMISSIONER OF CUSTOMS (AIRPORT & AIR CARGO COMPLEX), KOLKATA : C O R A M :

THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM -A N D-

HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)

HEARD ON : 5.3.2025 and 10.7.2025 JUDGMENT DELIVERED ON : 10.7.2025 Appearance :

Mr. Arnab Chakraborty, Adv. Mr. Aniket Chaudhury, Adv.

…for the appellant.

T.S SIVAGNANAM, CJ. :

1. This appeal filed by the importer is directed against the order dated 26th June, 2024, passed by the Customs, Central Excise and Service Tax Appellate Tribunal (Tribunal), by which the appeal filed by the appellant herein challenging the de novo adjudication Order-in-Original dated 12.09.2017 was dismissed.

2. The appellant has raised the following substantial questions of law for consideration :

“I. Whether the Hon'ble Tribunal acted without jurisdiction and in breach of judicial discipline by relying upon and reinstating its own earlier three-

member decision which had already been set aside by the Hon'ble High Court by its judgment dated 10.3.2010 in Atherton Engineering Co. Pvt. Ltd. v. Union of India, 2010 (256) ELT 358 (Cal), which has not been appealed by any of the parties and has since attained finality?

II. Whether the Hon'ble Tribunal failed to appreciate the limited scope of the de-novo adjudication laid down by the Hon'ble High Court in its said judgment dated 10.3.2010 and acted beyond its jurisdiction by restoring findings from a previously quashed decision?

II. Whether the Hon'ble Tribunal exceeded its jurisdiction by reopening the issue of classification which had already been finally settled by the Hon'ble High Court, and whether it erred in disregarding the binding nature of the said judgment dated 10.3.2010?

V. Whether the Hon'ble Tribunal failed to address the issue of inordinate delay in the conduct of de-novo adjudication proceedings and whether such failure vitiated the impugned order for being in violation of the principles of natural justice?

XII. Whether the Hon'ble Tribunal committed an error of law by failing to make any finding on confiscation and redemption fine imposed by the de- novo adjudicating authority even though the original adjudicating authority had not ordered confiscation, thereby rendering its order incomplete and unenforceable?

3. We have heard Mr. Arnab Chakraborty, learned Counsel appearing for the appellant and Ms. Manasi Mukherjee, learned Counsel for the respondent.

4. The case on hand has a chequered history and it may not be necessary for us to recapitulate all the earlier facts as to how the adjudication proceedings were done, how the matter was carried to the Tribunal, where the learned Members rendered differing opinion, reference to the third Member and the orders passed in a writ petition etc. This is so in the light of the fact that earlier writ petitioner had approached this Court and filed a writ petition being WP 748 of 2006 challenging the order passed by the Tribunal dated 2.3.2006, which decision is reported in 2007(21)

ELT 464 Tri.(Kol.). This final order passed by the Tribunal is by a majority of 2:1.

5. Before we examine the matter on merits and correctness of the findings recorded by the Tribunal, we propose to answer the question as to whether this appeal could be maintainable before this Court and whether the issue involved touches upon classification of the goods.` In fact, this question was posed by the Court to the learned Advocate appearing for the appellant though not raised by the Department in such form and manner.

6. To answer this question, we may straightaway refer to a few decisions of the Hon’ble Supreme Court which have decided as to when and under what circumstances an appeal would be maintainable before the Hon’ble Supreme Court and when it would be maintainable before this Court in terms of Section 130 of the Customs Act, 1962. The Hon’ble Supreme Court in Commissioner