Rubberwood India Pvt. Ltd. v. Asst. Commissioner of Customs, Customs House, Willingdon Island, Kochi; Commissioner of Customs (Appeals), Customs House Willingdon Island, Kochi; The Customs Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936** ## **WP(C).No. 24884 of 2014 (I)** **--------------------------------------** ## **PETITIONER(S):** **-----------------------** **RUBBERWOOD INDIA PVT. LTD., RUBBER BOARD, R.R.DTC COMPLEX, MANGANAM, KOTTAYAM - 686 108, REPRESENTED BY ITS COMPANY SECRETARY CUM FINANCE MANAGER.** ## **BY ADV. SRI.V.KRISHNA MENON** ## **RESPONDENT(S):** **--------------------------** **1. ASST. COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WILLINGTON ISLAND, KOCHI-682 009.** **2. THE COMMISSIONER OF CUSTOMS (APPEALS), CUSTOMS HOUSE WILLINGTON ISLAND, KOCHI-682 009.** **3. THE CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH, BANGALORE-9.** ## **BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 24884 of 2014 (I) --------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXT.P1 - TRUE COPY OF THE NOTIFICATION NO.84 OF 1997 DATED 11-11-1997. EXT.P2 - TRUE COPY OF THE NOTIFICATION NO.85 OF 1999 DATED 6-7-1999. EXT.P3 - TRUE COPY OF THE NOTIFICATION NO.119 OF 1999 DATED 02-11-1999.** **EXT.P4 - TRUE COPY OF THE ORDER DATED 25-6-2009.** **EXT.P5 - TRUE COPY OF THE ORDER DATED 28-6-2013 OF THE SECOND RESPONDENT.** **EXT.P6 - TRUE COPY OF THE JUDGMENT DATED 19-7-2013 IN WPC.NO.17391 OF 2013.** **EXT.P7 - TRUE COPY OF THE DEMAND DRAFT FOR R.3,50,000/- ALONGWITH THE COVERING LETTER DATED 16-08-2013 TO THE FIRST RESPONDENT.** **EXT.P8 - TRUE COPY OF THE DEMAND DRAFT FOR RS.2,043/- ALONGWITH A COVERING LETTER DATED 17-8-2013 TO THE FIRST RESPONDENT.** **EXT.P9 - TRUE COPY OF THE ORDER DATED 09-10-2013.** **EXT.P10 - TRUE COPY OF THE MEMORANDUM OF APPEAL BEFORE THE TRIBUNAL. EXT.P11 - TRUE COPY OF THE APPLICATION FOR STAY BEFORE THE TRIBUNAL.** **EXT.P12 - TRUE COPY OF THE AUDITED BALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR THE YEAR 2012-13.** **EXT.P13 - TRUE COPY OF THE ORDER DATED 30-07-2014 OF THE APPELLATE TRIBUNAL.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Ms **v/** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.24884 OF 2014** ......................................................................... **Dated this the 15[th] October , 2014** ## **J U D G M E N T** The petitioner is aggrieved of the interim order passed by the Customs, Excise & Service Tax Appellate Tribunal, Bangalore as per Ext.P13, whereby 50% of the duty payable has been ordered to be satisfied , so as to avail the benefit of interim stay during the pendency of appeal. 2. The case of the petitioner is that the petitioner company has been set up as a 'World Bank Aided Project'. By virtue of Exts.P1 to P3 notifications, the petitioner has contended that they are entitled to import plant and machinery with exemption from Customs duty. Based on the import licence obtained by the petitioner, the plant and machinery were imported, undertaking to satisfy the necessary export obligation as per EXIM policy. Admittedly, the petitioner could not satisfy the export obligation on time; by virtue of which, proceedings were pursued by the Customs authorities, leading to Ext.P4 order dated 25.06.2009 demanding the petitioner to satisfy a sum of **Rs.14.08,172/-** plus interest . The petitioner challenged the same by way of **2** ## **W.P.(C)No.24884 OF 2014** appeal and after considering the I.A. for stay, Ext.P5 order was passed by the second respondent/Commissioner of Customs (Appeals) directing the petitioner to satisfy 50% of the disputed liability so as to avail the benefit of interim stay. 3. On challenging the said order before this Court, Ext.P6 judgment was passed in W.P.(C)No.17391 of 2013, whereby the condition was modified and the liability was scaled down to 25%; simultaneously directing the appellate authority to consider and finalise the appeal as specified. The appeal came to be dismissed as per Ext.P9 order dated 09.10.2013; being aggrieved of which, the petitioner approached the Tribunal by filing Ext.P10 appeal, along with Ext.P11 petition for stay. It is stated that the petitioner had also produced true copy of the Balance Sheet and statement of Profit and Loss Account for the year 2012-13 showing the financial base/position of the petitioner as borne by Ext.P12. However, the Tribunal passed Ext.P13 order dated 30.07.2014, directing the petitioner to satisfy 50% of the disputed amount, which made the petitioner to approach this Court mainly contending that the order virtually does not take note of the fact that the petitioner has already **3** ## **W.P.(C)No.24884 OF 2014** satisfied the condition imposed by this Court while passing Ext.P6 judgment and that, if the condition is permitted to stand, it will make the petitioner to satisfy nearly 75% of the disputed liability, which is quite onerous and hence the challenge. 4. Mr. Thomas Mathew Nellimoottil, the learned Standing Counsel, who entered appearance on behalf of the respondents points out that the remedy of the petitioner, if aggrieved of the condition/interim order passed by the appellate authority/Tribunal is only by way of appeal as provided under Section 35G of the Central Excise Act and not by way of writ petition under Article 226 of the Constitution. Reliance is sought to be placed on the decision rendered by the Apex Court in _**Raj**_ _**Kumar Shivhare v. Assistant Director, Directorate of Enforcement**_ which was considered and followed by a Division Bench of the Madras High Court in _**Metal Weld Electrodes vs. CESTAT, Chennai**_ **[(2014 (299) E.L.T. 3 (Mad.)].** Specific reference is made to paragraph 46 of the verdict rendered by the Madras High Court where it has been held that challenge is maintainable even against interim orders. 5. The learned Counsel for the petitioner points out that the **4** ## **W.P.(C)No.24884 OF 2014** matter considered by the Apex Court was with respect to the provisions of FEMA ( Foreign Exchange Management Act, 1999), where scope of the provision is entirely different. After making a comparative analysis with regard to the provisions of FEMA, Customs Act and Central Excise Act, the learned Counsel points out that an appeal is maintainable under the Customs Act **,** only if there is a 'substantial question of law' and that, since the condition imposed by the appellate authority as per Ext.P13 does not involve any such substantial question of law; appeal is not maintainable. 6. On going through the decisions cited across the Bar, this Court finds that there cannot be any dispute with regard to the law settled by the Supreme Court and the position made clear by the Madras High Court. The crux of the decision as discussed by the Madras High Court is only to the extent that there cannot be any uniform or general proposition that no appeal will lie against interim orders and that an interim order can also be subjected to challenge by way of appeal, as provided under Section 35G. It has been categorically made clear, whether substantial question of law is involved or not, depends upon the facts and **5** ## **W.P.(C)No.24884 OF 2014** circumstances of each case and that the same has to be considered separately. 7. Viewed in the above perspective, the only question to be considered by this Court is whether any 'substantial question of law' is involved in the present case so as to relegate the petitioner to avail the statutory remedy by way of appeal. The emphasis made by the petitioner is with regard to the eligibility of the petitioner to have the benefit of Exts.P1 to P3 Notifications for complete exemption from satisfaction of the customs duty. Reliance is also sought to be placed on the financial position of the petitioner, as reflected from Ext.P12 Balance Sheet and profit and loss accounts. 8. In the appellate order as borne by Ext.P9, it is stated that the petitioner had to produce a certificate with reference to the notifications, but the same was not produced at the time of clearance of the goods before the Customs authorities, which was a mandatory requirement so as to avail the benefit of exemption, if at all any exemption was to be provided. These aspects are largely with regard to the factual position and as such, it prima facie cannot involve any substantial question of law, so as to **6** ## **W.P.(C)No.24884 OF 2014** enable the petitioner to avail and maintain the remedy by way of appeal. That apart, the relief sought for by the petitioner vide relief No.(ii) to direct the appellate authority to consider and finalise the appeal on time, cannot be the subject matter of any appeal, as it can be dealt with only by issuance of a writ of mandamus. 9. However, coming to the materials on record, this Court finds that Ext.P13 order only says that the petitioner had to satisfy 50% of the duty payable. _**Duty payable**_ means the duty which has been fixed by the assessing authority as per Ext.P4 order. Originally, while passing the interim order in the first round of appeal, though 50% of the said duty was ordered to be satisfied, it was subsequently scaled down by this Court as per Ext.P6 judgment, enabling the petitioner to avail the benefit of stay on payment of 25%. This being the position, the order now passed by the Tribunal vide Ext.P13, directing to satisfy 50% of the duty payable, is only the duty which is payable as per Ext.P4 order and not 50% of the balance outstanding amount . 10. In other words, this Court finds that the petitioner is entitled to claim set off, in respect of the payment already **7** ## **W.P.(C)No.24884 OF 2014** effected, pursuant to Ext.P6 judgment to an extent of 25%. It is made clear that the petitioner is required to satisfy only the balance 25%, as ordered by the Tribunal vide Ext.P13. As the matter stands so, this Court does not find any reason to interfere with the order passed by the Tribunal. The matter is disposed of making the clarification to the above extent. The petitioner is given one month's time to satisfy the condition as aforesaid. ## **P.R.RAMACHANDRA MENON JUDGE** _lk_