COMMISSIONER OF CUSTOMS Vs. H KUMAR GEMS INC

JUDGEMENT

(1.) This petition is filed by the Commissioner of Customs, Ahmedabad calling in question the legality of the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (CEGAT for short) dated 2nd February 2001. By the said judgment, the CEGAT allowed the appeals of the respondent. The duty demands and penalties were either deleted completely or partially.

(2.) At the outset, learned counsel for respondent Nos.1 and 2 raised a preliminary objection with respect to the maintainability of the petition. The contention was that against the impugned judgment of the CEGAT, appeal under section 130E of the Customs Act, 1962 is available and such appeal would lie before the Supreme Court. He, therefore, contended that the present writ petition should not be entertained. Drawing our attention to para 16 of the judgment of the CEGAT, the counsel contended that besides others, question of rate of duty was an issue before the CEGAT which came to be decided in favour of the respondents. If the Department is aggrieved by such judgment, in terms of section 130E of the Customs Act, it must file an appeal and the present petition should, therefore, be not entertained.

(3.) Learned counsel Shri RJ Oza for the petitioner, however, countered such a contention submitting that the writ petition is maintainable since the issue decided by the CEGAT cannot be stated to be one in relation to the rate of duty.