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Commissioner of Central Excise & Customs, CIDCO, Aurangabad Versus M/s Midas Care Pharma Pvt. Ltd.

2017 (12) TMI 333 - BOMBAY HIGH COURT

Maintainability of appeal - Section 35-G of the CEA, 1944 - It is contended that, this Court does not have jurisdiction to entertain these appeals, and notwithstanding the fact that the appeals have been admitted, jurisdiction cannot vest in this Court when such jurisdiction is not specifically prescribed by the Statute - Held that: - the issue which we are called upon to adjudicate, would lead to a decision (if the appellant succeeds) determining the question of the rate of duty of excise, on t .....

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dismissed on the ground of maintainability. - FIRST APPEAL NO.2860 OF 2008 FIRST APPEAL NO.3869 OF 2008 - Dated:- 23-11-2017 - RAVINDRA .V. GHUGE AND SUNIL K. KOTWAL, JJ. Shri D.S. Ladda, Advocate for appellant Shri S.M. Godsay, Advocate for respondent ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.): 1. In both these appeals, the appellant - Central Excise & Customs Department, (hereinafter referred to as the Revenue Department), seeks to challenge the order dated 4.12.2007, and 4.3.2008, passed .....

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ontended that, this Court does not have jurisdiction to entertain these appeals, and notwithstanding the fact that the appeals have been admitted, jurisdiction cannot vest in this Court when such jurisdiction is not specifically prescribed by the Statute. 3. Prayer clauses (B) and (C) set out in both the appeals read as under : FIRST APPEAL NO.2860/2008 (B) The order dated 4.12.2007, passed by learned CESTAT, Mumbai bearing No.A/900/WZB/C-II/EB may kindly be set aside. (C) That, the order passed .....

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ntral Excise & Customs, Aurangabad Division-II vide Order-in-Original No.164/1999, dated 29.7.1999 may kindly be confirmed by upholding the demand of ₹ 6,52,354/- and also to impose penalty of ₹ 50,000/- under Rule 173-Q. 4. Considering the pleadings of the litigating sides, we called upon the learned Advocates to state as to whether they would prefer to address the Court on the jurisdiction issue prior to dealing with the merits of the matter. Learned counsel have stated that, t .....

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tral excise Tariff Act, 1985. (b) On 1.3.1994, the respondent assessee had claimed exemption from paying the tax on the product under Notification No.6/1994, dated 1.3.1994 and as amended by the Notification No.114/1994, dated 3.6.1994. (c) The exemption claimed was with regard to a material manufactured by product name Lidocaine Tropical Aerosol (USP), used as an anesthetic and specially restricted to surgery and used in hospitals and dispensaries. (d) The respondent has allegedly fraudulently .....

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urposes of administering anesthesia by anesthetists, would lead to reducing the cost of the product, and as such, consequently would reduce the cost of medical treatment and the financial burden on the patients. (g) If the said material is to be used as a sex stimulant and not for any surgery, the respondent needs to be deprived of the concessions/ exemption granted. (h) By the first order dated 31.10.1997, the Assistant Commissioner of Central Excise & Customs, Aurangabad confirmed the dema .....

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hereby confirm duty liability of ₹ 6,52,354/- and order recovery of the same under Section 11A of C.Ex. Act, 1944. I also impose a penalty of ₹ 50,000/- under Rule 173Q of C.Ex. Rules, 1944. I also order to recover the interest on the said amount under Section 11AA of CEA, 1944. (j) In the appeal preferred by the respondent before the Commissioner of Appeals, Central Excise, Mumbai, by order dated 27.12.2000/ 29.11.2002, the appeal of the respondent was allowed. (k) In the appeal be .....

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Bench of the Allahabad High Court in the case of Commissioner of Cus. & C. Ex. Vs. ECO Products (I) P. Ltd., reported in 2015 (315) E.L.T. 561 (All.). 7. Learned counsel Shri Ladda, appearing on behalf of the appellant Department submits that, there can be no dispute that Section 35, was earlier omitted by the introduction of the National Tax Tribunal Act, 2005. Subsequently, the said Act itself was held to be unconstitutional by the Hon'ble Apex Court in the matter of Madras Bar Associa .....

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onal objection of the respondent, it would be advantageous to refer to Section 35-G, which permits the filing of an appeal in the High Court. Section 35-G reads as under :- 35-G. Appeal to High Court : [Omitted by the National Tax Tribunal Act, 2005 (49 of 2005), Section 30 and Schedule, Part VII (w.e.f. 28.12.2005)] Explanation : 1. . . . . . . 2. Prior to its omission, S.35-G read as under : 35-G. Appeal to High Court : (1) An appeal shall lie to the High Court from every order passed in appea .....

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st other things, the determination of any question having a relation to the rate of the duty of excise or to the value of the goods, for purpose of assessment, would not be maintainable before this Court. 10. Learned counsel for the appellant specifically submits that, the case before this Court is as regards whether exemption granted to the respondent under a misrepresentation, has led to payment of lesser taxes. It is further contended by the appellant that, if this Court holds that the respon .....

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t. As such, if the appellant succeeds, the Department would succeed in raising the taxes on the product at issue and would, therefore, recover more taxes at a higher rate of duty of excise on the product, which was granted exemption by the Department. 12. We have considered the order passed by the learned Division Bench of this Court in the matter of J.V. Gokul & Co. (Pvt.) Ltd. (supra). We do not find that Section 35-G of the Central Excise Act or any other provision, similar or identical t .....

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al to the High Court has to be construed strictly and in a restrictive sense is to be considered. 58. There is no dispute that right of appeal is a statutory right given under Sections 35-G and 35-L of the Act. The scheme of the Act as delineated by Sections 35- G and 35-L indicates that subject matter of appeal before the High Court and the Apex Court have been clearly demarcated. The right of appeal has been granted to the assessee or revenue before the High Court and the Apex Court on differe .....

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e adopted. It is useful to refer to paragraph 44 of the judgment of the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore Vs. Mangalore Refineries & Petrochemicals Ltd. (supra) where the Karnataka High Court has noticed the intention behind the bifurcation of jurisdiction between the Apex Court and the High Court. Following was laid down by the Karnataka High Court in paragraph 44, which is as under : 44. The intention behind this bifurcation of jurisdiction betwe .....

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uniformity in the levy of excise duty throughout the country and consequently to see that the country's finance is not affected, the Parliament has vested the jurisdiction to decide the disputes with the Apex Court. Therefore, we see a duty policy underlining this bifurcation of the jurisdiction between the Apex Court and the High Courts. All other matters other than what is set out above, which relates to the individual manufacturers and all disputes based on assessment orders which have a .....

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sment had taken place, the proceedings initiated under Section 11-A were for determination of duty liability in which the eligibility of the said goods for exemption was disputed. The question of exemption is directly and proximately related to the rate of duty for the purposes of assessment of excise duty payable by the respondent. The appeal on the said question is clearly excluded under Section 35-G and can be filed by the revenue before the Apex Court under Section 35-L of the Act. Thus, the .....

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