The Calcutta High Court has dismissed an appeal on the ground of maintainability by holding that the question relating to the eligibility of exemption notification is related to the rate of duty.
The appellant, the Revenue challenged an order of the Tribunal wherein the Tribunal granted exemption Notification vide No.45/2005 Cus(Tariff) dated 16th May, 2005 has specifically exempted the goods cleared from SEZ to DTA by way of stock transfer.
The respondent-assesseeraised a preliminary objection contending that this appeal is not maintainable before this Court under Section 130 of the Act as the matter concerns a decision on the rate of duty as the question involved is with regard to the applicability of notification no.45/2005–Customs dated 16th May, 2005.
Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyyaobserved that the facts are not in dispute, namely, that the benefit of the notification no.45 of 2005 has been denied.
Dismissing the appeal of the Revenue, the division bench held that “In this regard, we have considered the decision of the Hon’ble Supreme Court in the Commissioner of Customs, Bangalore-1 –vs- Motorola India Limited reported in (2019) 9 SCC 563. It was pointed out that when the question involved is whether an assessee is covered by an exemption notification or not is a question relatable to the rate of duty. If that be the legal position, then this Court cannot entertain this appeal. Thus, the preliminary objection raised by Mr. Ghosh is sustained and appeal is held to be not maintainable before this Court. In the result, the appeal is dismissed as not maintainable.”
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