The Commissioner of CGST & CX, Thane Versus M\/s. Mahindra & Mahindra Ltd.
Central Excise
2018 (10) TMI 21 – BOMBAY HIGH COURT – 2020 (373) E.L.T. 508 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 19-9-2018
CENTRAL EXCISE APPEAL NO. 6 OF 2018
Central Excise
M.S. SANKLECHA & RIYAZ I. CHAGLA, JJ.
\nMr. Pradeep S. Jetly with Mr. Sham V. Walve, for the Appellant.
\nMr. Prakash Shah with Ms. Divyesha Mathur & Mr. Viraaj Bhate i\/by PDS Legal, for the Respondent.
\nORDER :
\n1. This Appeal under Section 35G of the Central Excise Act, 1944 (the Act) challenges the order dated 13th January 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (for short “the Tribunal”).
\n2. The Appeal as filed by the Revenue urges the following three questions of law :
\n(a) Whether in the facts and circumstances of the case and in law was the Tribunal right in deciding the issue merely on the ground of revenue neutrality when in its earlier order No. A\/903904\/ WZB\/2004\/C II dated 7.10.2<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n cts the Appeal only to the question No. (c) above. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ions at Nagpur and Rudrapur and utilized in payment of duty on tractors. Thus, the impugned order also records the fact that as it decides the Appeal on Revenue neutrality, the issue of valuation is not being visited by it. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n failure of justice.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n a Ltd. (supra) in the above case, it has been held that where an issue relating to valuation for purpose of assessment arises and the order is passed in breach of natural justice, then the Apex Court will admit the Appeal. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n cumstances, the Apex Court after recording that the sine qua non for the admission of Appeal before it is that the impugned order must relate to the rate of duty or determination of the value of goods for the purposes of assessment of duty. Therefore, not dealing with and\/or deciding the issue of rate of duty and\/or valuation for purposes of assessment would also be an order relating to rate of duty and\/or valuation of goods. This finds support by its recording that an order in respect of valuation and\/or rate of duty issues is passed in breach of natural justice, the same would be examined by the Hon'ble Supreme Court in an Appeal before it. In fact, the above decision supports the view that this Appeal is not maintainable before the High Court. An Appeal, if any, would lie before the Hon'ble Apex Court under Section 130E(b) of the Act. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" The Commissioner of CGST & CX, Thane Versus M\/s. Mahindra & Mahindra Ltd.Central Excise2018 (10) TMI 21 – BOMBAY HIGH COURT – 2020 (373) E.L.T. 508 (Bom.)BOMBAY HIGH COURT – HCDated:- 19-9-2018CENTRAL EXCISE APPEAL NO. 6 OF 2018 Central ExciseM.S. SANKLECHA & RIYAZ I. CHAGLA, JJ. Mr. Pradeep S. Jetly with Mr. Sham V. Walve, … Continue reading “The Commissioner of CGST & CX, Thane Versus M\/s. Mahindra & Mahindra Ltd.”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-14192","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14192","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14192"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14192\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14192"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14192"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14192"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n4. The impugned order dated 13 January 2013 of the Tribunal is a common order allowing the Respondents two Appeals. One filed by its Auto Division and the other by its Tractor Division. This Appeal of the Revenue is only against the order relating to Tractor Division of the Respondent.
\n5. The Respondent is a manufacturer of I.C. Engines and parts at its factory in Mumbai. These engines are being cleared to their units located in Nagpur and Rudrapur for use in the manufacture of tractors. At all times relevant to this Appeal i.e. November 1996 to March 2001, tractors are chargeable to excise duty.
\n6. The dispute in the present case is with regard to the appropriate valuation of the IC Engines and parts thereof which are captively consumed in terms of Valuation Rule 6(b)(ii) of the erstwhile Central Excise (Valuation) Rules 1975 (“Valuation Rule”).
\n7. The Respondent arrived at the valuation of its I.C. Engines and parts thereof by ad<\/p>\n
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\n9. On the aforesaid facts, we enquired of Shri. Jetly, the learned Counsel appearing for the Revenue as to whether this Appeal would at all be maintainable before this Court in view of Section 35G of the Act. This for the reason that the grievance of the Revenue in this Appeal is that the impugned order has not decided the issue of valuation, when the issue for its consideration was valuation of IC Engines and parts thereof.
\nWe also invited his attention to the decision of the Hon'ble Supreme Court in Steel Authority of India Ltd. Vs. Designated Authority, Directorate General of Anti-Dumping & Allied Duties 2017 (349) E.L.T. 193 (S.C.), in particular to paragraph 19 thereof which reads under:
\n“19. On the basis of the discussion that have preceded, it must the<\/p>\n
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\n10. In response, Shri. Jetly the learned Counsel submits as under:
\n(a) The impugned order of the Tribunal does not deal with the issue of valuation as it has only allowed the Respondent's Appeal on the issue of Revenue neutrality. The grievance of the Revenue is only to the extent that the order is in breach of principle of natural justice as the Tribunal has not dealt with the issue of valuation urged by the Revenue;
\n(b) In case this Court concludes that there has been a breach of principle of natural justice in not deciding the issue of valuation, it would only restore\/remand the issue of valuation to the Tribunal. It is only thereafter, when the Tribunal passes an order on remand that the question of valuation would arise ousting the jurisdiction of this Court, under Section 35G of the Act;
\n(c) Attention is drawn to paragraph 19 of Steel Authority of India Ltd. (supra) to submit that it deals with regard to admission of the Appeal and not with regard to <\/p>\n
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\n12. The submission that if this Appeal is admitted today then at the final hearing, if this Court holds that the issue of valuation has to be gone into it, the only order would be to remand the appeal to the Tribunal to decide the issue of valuation. This submission proceeds on the basis that the Appellate Authority while disposing of an Appeal which is in breach of principle of natural justice is only required to set aside the order and restore it to the Lower Authority for passing a fresh order. This submission is not based on provision which restricts the power of an Appellate Authority. Needless to state when there is any breach of natural justice is alleged, the Appellate Authority would have to examine the underlying dispute and find out whether on facts any p<\/p>\n
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\n14. The last submission on behalf of the Revenue viz. Undue hardship to the general body of litigants under the Act, to move the Apex Court e<\/p>\n
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