2018 (11) TMI 1082 – BOMBAY HIGH COURT – TMI – Maintainability of appeal – Time Limitation – issue based on valuation and / or rate of duty – assessment of goods – appeal under Section 35G of the Act – Difference of opinion – Held that:- Registry is directed to place the papers and proceedings of the present appeal before the Hon'ble the Chief Justice to obtain suitable directions to place the following questions of law before the larger bench. – Central Excise Appeal No. 60 of 2018 Dated:- 2-11-2018 – 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 cor
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ourt – (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 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
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ed therein. 7. As against the above, we pointed out to the learned Counsel appearing for the parties that this Court in APMM Terminals India Pvt. Ltd. Vs. Commissioner of Central Excise, 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
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ble or not has to be decided on the basis of the nature of order passed by the Tribunal i.e. whether it is an order that determines any question having relation to the rate of duty of excise 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 de
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ts as the challenge was in respect of penalty imposed. This as the issue of valuation as determined by the Tribunal was accepted by both sides. According to us, Section 35G(1) of the 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
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t. This as it is mandatory when the demand is confirmed. Therefore, the admission of appeal from the order of the Tribunal only on penalty under Section 11AC of the Act, without any 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. Ther
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