OD 21 ORDER SHEET CUSTA/59/2026 IA NO: GA/1/2026 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION ORIGINAL SIDE COMMISSIONER OF CUSTOMS AIRPORT AND AIR CARGO VS M/S SOVA SOLAR LIMITEED BEFORE: The Hon’ble JUSTICE RAJARSHI BHARADWAJ AND The Hon’ble JUSTICE UDAY KUMAR Date: 23rd July, 2026. Appearance: Mr. Vipul Kundalia, Sr. Adv. Mr. Tapan Bhanja, Adv. Mr. Anindya Kanan, Adv. Ms. Anukriti Agarwal, Adv. …for the appellant Mr. Arnab Chakraborty, Adv. Mr. Aniket Chaudhury, Adv. …for the respondent The Court: Learned counsel appearing for the appellant suggests the following substantial questions of law by filing the appeal under Section 130 of the Customs Act, 1962. “A. Whether the respondent is liable to pay the Safeguard Duty on the imports of “Solar Photovoltaic Cells” falling under Customs Tariff Heading 85414011, from Taiwan ? 2 B. Whether the revenue is correct and justified invoking Section 28 of the Customs Act, 1962, for recovery of short- levied duty without challenging the initial assessment/re- assessment by way of appeal under Section 128 of the Customs Act, 1962 ? C. Whether the Learned Tribunal was correct in law by applying the decision of the Hon’ble Supreme Court of India in the case of ITC Ltd. to bar the recovery notice issued under Section 28 of the Customs Act, 1962 ? D. Whether the self-assessment or re-assessment of a Bill of Entry attains absolute finality so as to preclude the issuance of a Show Cause Notice under Section 28 of the Customs Act, 1962 when misinterpretations of notifications are subsequently discovered ? E. Whether the Department’s failure to file an appeal under Section 128 of the Customs Act, 1962 against a self- assessment or re-assessment precludes it from exercising its independent power to issue a Show Cause Notice for short- levied of duty under Section 28 of the Customs Act, 1962 ? F. Whether the impugned order dated 26.11.2025 passed by the Learned Tribunal is perverse, bad in law and liable to be set aside ?” Section 130 of the Customs Act 1962 speaks of appeal to High Court which is quoted below:- 3 “130. Appeal to High Court. – (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The [Principal Commissioner of Customs or Commissioner of Customs] or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be – (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the [Principal Commissioner of Customs or Commissioner of Customs] or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. [(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.]” 4 The Customs Act, 1962 also speaks of appeal to Supreme Court which is quoted below:- “130E. Appeal to Supreme Court. – An appeal shall lie to the Supreme Court from – [(a) any judgment of the High Court delivered – (i) in an appeal made under section 130; or (ii) on a reference made under section 130 by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 130A, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or] (b) any order passed [before the establishment of the National Tax Tribunal] by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. [(2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment.]” On perusal of Sections 130 and 130E of the Customs Act, 1962 in our opinion, this appeal should be preferred before the Hon’ble Supreme Court under Section 130E of the Act. 5 The appeal and the connected application preferred by the department are dismissed. Leave is granted to the learned advocate-on-record of the appellant to receive certified copy of the tribunal from the department and replace it with a photocopy of the same. (RAJARSHI BHARADWAJ, J.) (UDAY KUMAR, J.) B.Pal