Page 185 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] TBK INDIA PVT. LTD. v. UNION OF INDIA 575

Kirloskar Abara Pumps Ltd. v. Commissioner — 2017 (346) E.L.T. 148 (Tribunal)
— Referred ............................................................................................................................. [Paras 8, 9, 10]
Mercedes Benz India Pvt. Ltd. v. Union of India — 2010 (252) E.L.T. 168 (Bom.)
— Referred ................................................................................................................................. [Paras 9, 10]
Mondelez India Foods Pvt. Ltd. v. Commissioner — 2017 (357) E.L.T. 813 (Tribunal)
— Referred ............................................................................................................................. [Paras 8, 9, 10]
Syed Yakoob v. K.S. Radhakrishnan — 1964 (5) SCR 64 — Referred ...................................... [Paras 8, 9, 10]
Wep Peripherals Ltd. v. Commissioner — 2008 (224) E.L.T. 30 (S.C.) — Referred ............... [Paras 8, 9, 10]
REPRESENTED BY : S/Shri Prakash Shah with Jas Sanghavi i/b. PDS
Legal, for the Petitioner.
S/Shri Pradeep S. Jetly, Senior Advocate with J.B.
Mishra, for the Respondent.
[Order]. - P.C. : Heard the Learned Counsel for the parties. In view of the
short question involved, the petition is taken up for disposal.
2. The Petitioner has challenged the order dated 10 May 2019 passed by
the Customs, Excise and Service Tax Appellate Tribunal [2019 (369) E.L.T. 673
(Tri. - Mum.)] and the order dated 5 July 2012 passed by the Commissioner of
Customs (Appeals). By the impugned order, the Tribunal has dismissed the ap-
peal filed by the Petitioner as premature.
3. The Petitioner is a company incorporated under the Companies Act,
1956. The Petitioner is a joint venture of Tokyo Buhin Kogyo Co. Ltd., Japan. The
Petitioner imports certain goods from its joint venture company from Japan. The
Petitioner paid royalty to its joint venture partner. The Petitioner had registered
under GATT Valuation Cell which was set up in terms of the Circular dated 23
February 2001. The issue was taken up by GATT Valuation Cell and the Petition-
er submitted documents pursuant to the questionnaire. The Deputy Commis-
sioner of Customs, GATT Valuation Cell conducted an investigation as per the
terms of the Circular and passed an order on 2 March 2006 and then in review on
11 January 2010 taking certain view in respect of royalty payable.
4. The Respondent-Revenue filed an appeal before the Commissioner
of Customs (Appeals) against the order dated 11 January 2010. The Commission-
er (Appeals) allowed the appeal and set aside the order dated 11 January 2010.
5. The Petitioner filed an appeal before the Tribunal. The Tribunal ob-
served that to render a decision on the goods which are yet to be provisionally
assessed would be a premature venture. The Tribunal held that the impact of the
impugned order will result in final assessment and, therefore, at this stage, enter-
taining the appeal would be premature. Accordingly, by the impugned order, the
Tribunal dismissed the appeal as premature.
6. After the order was passed, the Commissioner of Customs issued
two communications to the Petitioner stating that the Department would pro-
ceed for final assessment under Section 189 of the Customs Act, 1962 in the light
of what is held by the Commissioner (Appeals). Hence, this petition.
7. The Learned Counsel for the Respondents raised a preliminary objec-
tion that an appeal is maintainable from the order passed by the Tribunal and
writ petition should not be entertained in view of availability of an alternate
remedy. He submitted that final assessment is yet to be completed.
8. The Learned Counsel for the Petitioner submitted that the Tribunal
has not decided the appeal on merits but has dismissed the same as premature.
EXCISE LAW TIMES  15th May 2020  185