OD 19 ORDER SHEET CUSTA/54/2026 IA NO: GA/1/2026 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION ORIGINAL SIDE TIRUMALA SEVEN HILLS PVT LTD VS THE COMMISSIONER OF CUSTOMS (PORT), KOLKATA BEFORE: The Hon’ble JUSTICE RAJARSHI BHARADWAJ AND The Hon’ble JUSTICE UDAY KUMAR Date: 23rd July, 2026. Appearance: Mr. Piyush Kumar, Adv. …for the appellant. Kr. Vipul Kundalia, Sr., Adv. Mr. K.K. Maiti, Adv. . . .for the respondent. The Court: Learned counsel appearing for the appellant files supplementary affidavit. Let the supplementary affidavit be kept with the records. 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. “I. Whether the Learned Customs, Excise and Service Tax Appellate Tribunal Committed an error of law in holding that the imported “Optical Switch Unit” falls within the category of 2 Optical Transport Equipment (OTE), Optical Transport Network (OTN) Product, Packet Optical Transport Product or Packet Optical Transport Switch, despite the admitted fact that the impugned goods neither perform transmission, routing nor networking functions? II. Whether the Learned Tribunal erred in law by ignoring the settled principle that classification and eligibility to exemption must be determined on the basis of the characteristics and functions of the imported goods as presented at the time of importation and not on their possible future use?” Section 130 of the Customs Act 1962 speaks of appeal to High Court which is quoted below:- “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 – 3 (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.]” 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] 4 (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. 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.) Sp/