The Commissioner of CGST & Central Excise, Belapur, Navi Mumbai Versus Hindustan Petroleum Corporation Ltd.
Central Excise
2018 (11) TMI 1082 – BOMBAY HIGH COURT – 2019 (369) E.L.T. 579 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 2-11-2018
Central Excise Appeal No. 60 of 2018
Central Excise
M.S. SANKLECHA & RIYAZ I. CHAGLA, J.J.
Mr. Pradeep S. Jetly for the appellant
Ms. Mansi Patil for the respondent
P.C.
1. This appeal under Section 35G of the Central Excise Act,1944 (the Act) challenges the order dated 31st October, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (Tribunal).
2. The Revenue has urged the following reframed question of law for our consideration :
“Whether on the facts and circumstances of the case and in law, the Tribunal was correct in setting aside the demand of limitation after having held in favour of the Revenue on merits?”
3. The impugned order of the Tribunal dated 31st October, 2017 dismissed the respondents assesse
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ngs, to the determination of any question having a relation to the rate of duty of excise 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.”
(emphasis supplied)
5. Ms. Patil, learned Counsel appearing for the respondents on instructions states that the respondents have accepted the order of the Tribunal in respect of the valuation. Thus, there is no challenge to the impugned order in respect of valuation before the Hon'ble Supreme Court.
6. Therefore, both the learned Counsel appearing for the appellant and the respondent submits that the appeal under Section 35G of the Act as filed would be maintainable. This as the issue of valuation for the purposes of assessment of duty, is a concluded issue between the parties as it has been accepted. The only issue which is being urged in this appeal is on account of limitation. Therefore, this Court would have jurisdiction to entertain the appeal.
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2018, TIOL 1891, had already taken a view on this. This Court had while construing the ambit of Section 35G(1) of the Act for the purposes of entertaining the appeals from the order of the Tribunal has inter alia observed as under :
“10. It was also urged on behalf of the appellant that the question whether this Court has jurisdiction to entertain an appeal would have to be decided on the basis of the questions of law proposed by the appellant before it. In the above context, it was submitted that the questions as proposed would not make it a classification issue. This submission cannot be accepted in view of the clear language of Section 35G(1) of the Act which says an appeal shall lie to the High Court from every order passed in appeal by the Tribunal on or after the 1st day of July, 2003 except when the order of the Tribunal relates to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. Thus, the
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se or value of goods for the purposes of assessment.
We are in respectful agreement with the view of the Punjab and Haryana High Court in Raja Dyeing (supra) on the above issue. Thus, we do not accept the above submission that the jurisdiction to entertain an appeal is determined by the question proposed by the Appellant. It is only determined by the nature of the order passed by the Tribunal and if not within the exclusion clause of Section 35G(1) of the Act, an appeal to this Court will be entertained.”
8. It must be pointed out that the decisions of this Court in Facor Steel Ltd. (supra) and Mahindra Ugine Steel Co. Ltd. (supra) were not pointed out to us wherein maintainability of the appeal was decided by us in APMM Terminals Pvt. Ltd. (supra). In the above view, we asked the Counsel if the two decisions i.e. Facor Steel Ltd. (supra) and APMM Terminals India Pvt. Ltd. (supra) could be reconciled. They replied in the negative.
9. Our attention is also drawn to the decision of th
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Act bars an appeal being filed in this Court from the order of the Tribunal relating to the determination of any question having a relation to the rate of duty or value of goods for purposes of assessment. The issue of the assessment of goods to duty on either of rate of duty or valuation issue being time barred, would also be an assessment to duty and, therefore barred. Moreover, the word “assessment” as defined under the Central Excise Rules, 2002 is with regard to assessment to duty. No reason is shown to us which would require a different meaning be given to the word “assessment” used in Section 35G(1) of the Act. However, imposition of a penalty by the Tribunal is not related to assessment of goods for the purposes of dutability arising out of rate of duty and / or valuation issue. The words “rate of duty of excise or value of goods for assessment” has to be read as relating to determination of duty on the goods. The issue of penalty is an exercise done subsequent to assessment of
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y challenge to the confirmation of the demand on issue of valuation and / or rate of duty issue is an empty formality. This submission of the Counsel ignores the fact that the merit of the appeal itself will not determine the issue of maintainability under Section 35G of the Act, which is a threshold issue.
12. In any case, it is agreed position between the parties that the apparent conflict of views of this Court in APMM Terminals India Pvt. Ltd. (supra) and Facor Steel Ltd. (supra) are not reconsiliable. Therefore, this difference can only be resolved by a larger bench of this Court so as to lay down the law for the State.
13. This more particularly as the issue raised herein may have wide impact, as it may affect the appeals under the Act, Finance Act, 1994 and the Customs Act, 1962 in this Court.
14. Therefore, the difference of view is best referred to the Hon'ble the Chief Justice to constitute a larger bench of this Court, if he so deem fit to resolve the apparent
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