(A.M. Khanwilkar and Sanjiv Khanna, JJ.)
Commissioner of Customs (Import) Nhavasheva _______ Appellant;
v.
Neulife Nutrition Systems ________________________ Respondent.
Civil Appeal No(s). 866/2019, decided on July 28, 2021
The Order of the court was delivered by
Order
1. We have heard learned counsel for the parties at length.
2. We have perused the relevant documents including the judgment(s) and order(s) dated 22.05.2009 and 27.02.2018 passed by the Commissioner of Customs (Import) (for short, ‘the Commissioner’) and the Customs, Excise & Service Tax Appellate Tribunal (for short, ‘the Tribunal’) respectively.
3. In our opinion, the view taken by the Commissioner in respect of classification of product specified as ‘whey protein’, as discussed in paragraphs Nos. 106 to 109 of the judgment dated 22.05.2009 is the correct view, which does not require interference. The Tribunal has rightly endorsed that position. It is a different matter that the Tribunal in the impugned judgment ought to have elaborated on the aspects dealt with by the Commissioner, to take that view. That does not take the matter any further for the Appellant-Department.
4. We uphold the finding of fact and thus, the conclusion reached by the Commissioner as well as the Appellate Tribunal in that regard.
5. However, the only indulgence that needs to be shown in this appeal is in regard to the issue of valuation. For, the Tribunal has not adverted to the efficacy of Section 3 of the Customs Tariff Act, 1975 and Section 4A of the Central Excise Act, 1944 at all. Whereas, it decided the issue under consideration only in reference to Section 14 of the Customs Act, 1962. We refrain from dilating on this issue any further, as we are disposed to remit the matter to the Tribunal for reconsideration of that issue afresh. We leave all contentions available to both sides open for being examined by the Tribunal on its own merits and in accordance with law.
6. Accordingly, we set aside the finding and conclusion of the Tribunal on the issue of valuation and relegate the parties before the Tribunal by remanding the appeal for considering the limited issue of valuation, afresh on its own merits and in accordance with law. Ordered accordingly.
7. All contentions available to the parties in that regard are left open.
8. The appeal is partly allowed in the above terms. No order as to costs.
Civil Appeal No(s). 866/2019
Commissioner of Customs (Import) Nhavasheva __________ Appellant
v.
Neulife Nutrition Systems ___________________________ Respondent
IA No. 74765/2020 – EARLY HEARING APPLICATION
IA No. 4972/2019 – EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT & IA No. 4969/2019 – STAY APPLICATION)
Date : 28-07-2021 These matters were called on for hearing today.
(Before A.M. Khanwilkar and Sanjiv Khanna, JJ.)
For Appellant(s) Mr. Balbir Singh, ASG
Mr. Mahabir Singh, Sr. Adv.
Mr. Mukesh Kumar Maroria, AOR
Ms. Shirin Khajuria, Adv.
Ms. Sunita Rani Singh, adv.
Mr. Vikrant Yadav, Adv.
Mr. Shyam Gopal, Adv.
For Respondent(s) Mr. V. Sridharan, Sr. Adv.
Mr. Jaydeep Patel, Adv.
Mr. Jasdeep Singh Dhillon, Adv.
Mr. Rahul Gupta, AOR
Mr. Aditya Bhattacharya, Adv.
Ms. Mounica Kasturi, Adv.
Mr. Akshay Sharma, Adv.
UPON hearing the counsel the Court made the following
ORDER
9. The appeal is partly allowed in terms of the signed order.
10. Pending applications, if any, shall stand disposed of.
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