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2016 (2) TMI 16 - MADRAS HIGH COURT

2016 (2) TMI 16 - MADRAS HIGH COURT - 2016 (336) E.L.T. 25 (Mad.) - Admissibility of appeal - dispute on valuation of the goods - Held that:- Admittedly, in the case on hand, the dispute before the Tribunal is, with reference to valuation of the goods. When the dispute is with reference to the valuation of the goods, even though the amount of duty involved is not more than Rupees Two Lakhs, the Tribunal has no discretion to refuse to admit the appeal. So far as this Court is concerned, when the .....

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gard to valuation but also with reference to questions in relation to valuation. The phrase in relation to are words of comprehensiveness, which might both have a direct significance as well as indirect significance depending upon the context. But, the phrase has to be read not in isoloation, but along with the pleadings in the case. The pleadings are pertaining to the non-application of mind by the Tribunal, while interpreting the provisions of Section 35B of the Act. Therefore, the contention .....

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Tribunal can pass order for rectifying a mistake apparent from the records within six months from the passing of the order, as contemplated under Section 35C (2) of of the Act. - At least, after the mistakes being pointing out, the Tribunal below ought to have rectified the same. Instead, the Tribunal has passed a cryptic order without assigning any reason. On the simple ground that it is a non-speaking order, the order is liable to be set-aside and it is set-aside accordingly. As the order .....

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82 of 2014, dated 09.07.2014, dismissing the appeal under Section 35B (1) of the Central Excise Act, 1944 (hereinafter will be referred to as the Act ), passed by the first respondent. Civil Miscellaneous Appeal No.2230 of 2015 has been filed against the Miscellaneous Order No.40697 of 2015, dated 07.05.2015, dimissing the Application for Rectification of Mistake, passed by the first respondent. Facts in brief:- 2. The appellant / assessee is engaged in the manufacture of 'floor cleaning mac .....

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heir depots. The appellant, after selling the goods at depots, calculated the differential duty, based on the value of the goods sold in the respective depots and paid the differential duty. 2.2. The appellant, while calculating the differential duty, based on the depot prices, adjusted the excess payment against the short payment made by them at the time of clearance from their factory and paid the differential duty, if any. 2.3. The claim of the Revenue was that the appellant ought to have dis .....

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ential duty. Out of 17 notices, in 15 cases, the adjudicating authority confirmed the proposal and the appeals before the first appellate authority, namely, the Commissioner of Central Excise, were also dismissed. 2.4. On a further appeal, the Tribunal allowed the appeal, but remanded the matter to the original adjudicating authority, by the order, dated 02.03.2011. Based on this order of the Tribunal, (in the remaining two cases) the appeals pending before the first appellate authority were all .....

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13, demanded a sum of ₹ 22,515/- as differential duty, which included the penalty of ₹ 5,000/-. The claim of the appellant was that the appellant had paid a sum of ₹ 30,58,686/- as excess. 2.6. Therefore, the appellant filed an appeal before the Commissioner of Central Excise and the appeal got rejected. The appellant filed a further appeal before the first respondent / Tribunal and the Tribunal rejected the appeal under Section 35B (1) of the Act, on the ground that the appeal .....

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in the appeal relate to valuation? B. Whether the Tribunal is justified in rejecting the ROM application wherein it was specifically pointed out that one of issue arises in the appeal relate to valuation and in such a case, second proviso clause (i) of Sec. 35-B of the Central Excise Act is not attracted? 2.8. The appellant filed an Application for Rectification of Mistake (ROM) and by the order, dated 07.05.2015, the said ROM got dismissed. Aggrieved over the same, the Assessee has filed C.M.A. .....

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lant / assessee in C.M.A.No.2586 of 2015 is that, the Tribunal has no jurisdiction to reject the appeal on the ground of monetary limit and that monetary limit is not applicable in cases where the issue involved relates to rate of duty or valuation of goods. 4.1. The answer by the Revenue is that, when the issue relates to valuation or rate of duty, neither this Court nor the Tribunal has got jurisdiction to entertain the appeal and therefore, the order passed by the Tribunal is justified. 4.2. .....

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y the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963 ) (hereafter in this Chapter referred to as the Board) or the Appellate Collector of Central Excise under section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Collector of Central Excise, either before or after the appointed day, under section 35A, as it stood immediately before that day: Provided that no appeal shall lie to the Appellat .....

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rritory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India; (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty: Provided further that the Appellate Tribunal may, in its discretion, refuse, to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where the determination of any question having .....

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ses of cases, which have to be decided by the Central Government, in Revision, under Section 35EE of the Act. Under the second proviso to Section 35B of the Act, the appellate Tribunal is vested with discretion to refuse to admit an appeal, in respect of the order referred to in clause (b) or clause (c) or clause (d), where, (i) in any disputed case, other than a case, where the determination of any question having a relation to the rate of duty of the excise or to the value of goods for the pur .....

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e limit was rupees fifty thousand which has been enhanced to Rupees Two Lakhs, by Finance Act (No.2), 2014, with effect from 06.08.2014. 4.5. Further, in the case of J.K.Sharma v. Government of India, 1993 (66) E.L.T. 66 (Mad.), it has been held that the minimum monetary limit prescribed under Section 131 B of the Customs Act, 1962, as per the proviso applies to each clause separately and not cummulatively and that under each clause, referring duty, differential duty, penalty or fine, the limit .....

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luation of goods, and if that be so, whether the Tribunal is justified in dismissing the appeal under Section 35B of the Act is the issue to be decided. 4.7. Admittedly, in the case on hand, the dispute before the Tribunal is, with reference to valuation of the goods. When the dispute is with reference to the valuation of the goods, even though the amount of duty involved is not more than Rupees Two Lakhs, the Tribunal has no discretion to refuse to admit the appeal. So far as this Court is conc .....

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o be decided by this Court pertains to questions relating to valuation or rate of duty and therefore, these appeals are not maintainable before this Court. The residuary contention of the learned counsel for the respondents is that, in case, this Court upholding the jurisdiction, the matters have to be remanded back to the Tribunal, in order to decide the maintainability of the appeals before the Tribunal itself. 5.1. At this juncture, it would be appropriate to quote the provisions of Section 3 .....

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2. Therefore, the issue to be decided is whether the issue raised before this Court is with reference to valuation of the goods, and therefore, it is not maintainable or the issue is pertaining to issues which are not barred under Section 35G of the Act. 5.3. So far as the appeals before this Court are concerned, they are not upon the question relating to valuation of the goods or duty to be paid, but with reference to the nature and validity of the orders passed by the Tribunal. It is pointed o .....

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be said that the issue before this Court is regarding valuation. 5.4. Under Section 35G of the Act, the reference to the jurisdiction is not only with regard to valuation but also with reference to questions in relation to valuation. The phrase in relation to are words of comprehensiveness, which might both have a direct significance as well as indirect significance depending upon the context. But, the phrase has to be read not in isoloation, but along with the pleadings in the case. The plea .....

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After admitting the appeal, it is open to the Tribunal to decide the issues raised on merits. 7. This view is fortified by the decision of the Delhi High Court rendered in the case of 2013 (30) S.T.R. 451 (Del.) (Commissioner of Service Tax, Delhi v. Bharti Airtel Ltd.,), in which, it has been held that it is not the content of the appeal, that is determinative of whether the appeal would be maintainable before the High Court or not, but rather the nature of the order, which is impugned in the a .....

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g to the second proviso to Section 35B of the Act. In other words, it is apparent on the face of the provision of Section 35B of the Act that the order passed suffers from the mistake apparent on the face of the record. 9. The Tribunal has no power to review its own order. However, the Tribunal can pass order for rectifying a mistake apparent from the records within six months from the passing of the order, as contemplated under Section 35C (2) of of the Act. As per the decision reported in the .....

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