Commissioner of Customs, Bangalore vs B.B.S. Pens (India) Pvt. Ltd.

V.G. Sabhahit, J.—This appeal is filed by the Revenue being aggrieved by the order dated 8-1-2007 passed in Writ Petition No. 41887/2003 wherein the learned Single judge of this Court has held that the writ petitioner has to approach the Supreme Court under the provisions of the Customs Act, 1962 as the Tribunal has embarked upon the proceedings to characterize the nature of the order passed by the Commissioner on merits including the process of valuation and incidental classification. We have heard the learned counsel appearing for the appellant.

The learned counsel appearing for the appellant submitted that the Petition was maintainable and the same could be decided and it was not necessary to give a finding that the appeal shall be filed before the Supreme Court u/s 130E(b) of the Customs Act, 1962, which is erroneous and liable to be set aside.

The respondent though served has not chosen to appear before this Court.

We have given careful consideration to the contentions raised by the learned counsel appearing for the appellant and scrutinised the records. The material on record clearly shows that being aggrieved by the order passed by the CEGAT, Bangalore Bench, dated 1-3-2002 2002 (102) ECR 682 the Writ Petition was filed contending that the order passed by the Tribunal is without jurisdiction. The learned Single Judge having gone into the provisions of the Customs Act held that the Tribunal has gone into the question of nature of the order passed by the Commissioner including the process of valuation and incidence of tax and therefore the petitioner should approach this Court u/s 130E(b) of the Act. Having regard to the nature of the order passed by the CEGAT it is clear that the fact that the Tribunal has also gone into the question on merits including the process of valuation and incidence of tax and to characterize the nature of the order passed including the process of valuation, it is clear that the appeal would lie to the Supreme Court u/s 130E(b) of the Act. We do not find any error or illegality in the order so as to call for interference, in this intra Court appeal. Accordingly, the appeal is dismissed.