TMI Blog2009 (11) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... d L. Narayanaswamy, JJ. REPRESENTED BY : Shri N.R. Bhaskar, Sr. Counsel, for the Appellant. Shri G. Shivadas, Advocate, for the Respondent. [Judgment per : D.V. Shylendra Kumar, J.]. CEA Nos. 64 86 of 2009 : These two appeals are preferred by the Central Excise Department u/s 35-G of the Central Excise Act, hereinafter referred to as ( the Act for short). These two appeals go together for the reason that both appeals have their origin to an appellate order dated 16-11-2006 passed by the CESTAT, Bangalore wherein the Tribunal had allowed the appeal of the Assessee M/s. GE Medical Systems X-Ray (South/Asia) Limited to get over an adjudication order that had been passed by the Commissioner, Central Excise, Pune in Original Order F. No. V(30)15-58/Adj/Commr/03, dated 18-4-2005. The question of law raised in the respective appeals are as follows : 1. The following substantial questions of law arise from the impugned order of the CESTAT : (a) Whether the order of CESTAT is sustainable in law and whether the Order of CESTAT is legally correct in its interpretation of Section 35C(2) in holding that the ROM has been filed beyond the period of six (6) month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification of spares of x-ray machines and spares of FRU Mobile Image Intensifiers (MII)? (b) Whether the order of the Hon ble CESTAT is correct and legally sustainable in allowing appeal filed by the assessee without considering the merits of the case where in question of law pertaining to classification is involved. Rate of duty is determined on the basis of tariff classification of the particular commodity. Unless the classification is decided properly, duty aspect cannot be determined. This aspect has to be considered on the basis of which entire issue of classification of spares of x-ray machines and spares of FRU Mobile Image Intensifiers (MII) is bases? 2. The following a show cause notice dated 27-1-2003 issued to the Company and its Manager (Finance), the Commissioner had passed the following order : I. I confirm the demand of Rs. 11,53,04,274/- (Rs. Eleven Crores fifty three lakhs four thousand two hundred seventy four only), out of the demand of Rs. 11,80,29,801/- on S-cat items vide show cause notice No. DGCEI/PRU/INT/30/2001, dated 21-7-2003, under the provisions of Section 11A(2) of the Central Excise Act, 1944. II. I confirm the demand of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter the appeals having listed for admission have been coming up before us for couple of occasions and we have heard Sri N.R. Bhaskar, learned Senior Central Government Standing Counsel appearing for the appellant and Sri G. Shivadas, learned counsel appearing for the respondent-assessee. 8. Sri Shivadas, learned counsel for the Assessee has raised a preliminary objection regarding the maintainability of the appeals though for two different reasons. In so far as, the appeal relating to the order of the Tribunal on merits is concerned, the objection is an appeal of this nature cannot be maintained before this Court u/s 35G as what is sought to be corrected by the Revenue in the order of the Tribunal is a finding relating to rate of duty or classification as it can be called and the question involved to rate or classification having been expressly excluded from the scope of appeal u/s 35G of the Act and in fact such matters to be taken up by way of appeal directly to the Supreme Court and not to the High Court and therefore the appeals are not maintainable. 9. Sri Bhaskar, learned Senior Standing Counsel has very vehemently urged that it is misnomer to call that the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and has brought to our notice in the case of Sunitadevi Singhania Hospital Trust v. Union of India reported in 2009 (233) E.L.T. 295 (S.C.) and would submit that as laid down by the Supreme Court in this judgment, the period of limitation should not be a deterrant factor of the quasi judicial Tribunal like the CESTAT to render justice, that the application filed by the Revenue seeking for rectification of the order of the Tribunal should not have been rejected with reference to sub-section (2) of Section 35C of the Act. Mr. Bhaskar, learned Senior Standing Counsel would submit that even when the Department had sought to bring it to the notice of the Tribunal, that there was a failure of duty on the part of the Tribunal is not recording a finding relating to the question of levy of duty under the Act in respect of spares of Mobile Image Intensifiers and X-ray machine and as such the order of the Tribunal was silent on this aspect to that extent it was required to be corrected and finding recorded, but the Tribunal had missed the point and had simply rejected the application only on the ground of limitation that by itself would constitute question of law worthy an examination u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation, even assuming, that it is a question of law, there is no error in the finding on the question of law also and therefore there is no way of we keeping this appeal pending on the board of this Court for further examination, the order of the Tribunal is fully in consonance of the law declared by the Supreme Court in Hongo India (P) Ltd., the appeal inevitably has to be dismissed and it is accordingly dismissed. 14. In so far as appeal relating to main matter namely C.E.A. No. 86/2009 is concerned, we wish to examine the preliminary objection raised by Mr. Shivadas. 15. Though the real question involved is one relating to levy of duty on the spares which are manufactured by the Assessee which they go as intermediary for their products of X-ray machines and mobile image intensifiers are as products by themselves sold, also dispute being as to whether such spares were subject to duty at 8% as claimed by the assessee or 16% as claimed by the Revenue, it is essentially a dispute relating to the rate of duty with reference to tariff classification and if such is the question it is a subject matter of appeal to Supreme Court after the order passed by the Tribunal and not to the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal only rising a question of setting aside of the penalty levied by the Department adjudicating authority under Rule 209-A of the Central Excise Rules, 1944 that is not necessarily governed by the result in main appeal No. 86/2009, that question relating to justification of levy of penalty is not a question that can be taken to Supreme Court u/s 35L and question of this nature can necessarily be examined only in the appellate jurisdiction of this High Court u/s 35G and therefore the appeal has to be examined by this Court alone. 21. The submission of Sri Shivadas, the learned counsel for the respondent who had been put on notice, the appeal itself having not raised any question of law relating to justification or otherwise of the levy of penalty, no need for either admitting the appeal or for further examination. 22. Though Sri Bhaskar, learned Senior Standing Counsel would submit that while it is not incumbent upon the Assessee to indicate substantial question of law in the memorandum of appeal itself and it is for court to formulate such questions and the learned Standing Counsel is very right in his submission and it is only satisfaction of the High Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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