TMI Blog2018 (9) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... ders of the Tribunal which are appealable only to the Supreme Court in terms of Section 35L(2) of the Act applies even to appeals from order of the Tribunal passed prior to 6th August, 2014 (i.e. the date of insertion of Sub-section (2) to Section 35L of the Act)? - (b) Whether the amendment made to Section 35L of the Act on 6th August, 2014 by insertion of sub-section (2) therein, is clarificatory or prospective in nature? Matter referred to Larger Bench. - CENTRAL EXCISE APPEAL NO. 130 OF 2017 - - - Dated:- 6-9-2018 - M.S. SANKLECHA RIYAZ I. CHAGLA, JJ. Mr. Swapnil Bangur a/w Mr. J.B. Mishra for the appellant Mr. R.V. Desai, Senior Counsel a/w Mr. Rohit Pardesi, Mr. Nagin Patel and Mr. Girish Bhambhani for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Tariff Act, 1985. 4. It is a settled position in law that in the absence of marketability, the goods do not become excisable goods. Thus, the issue is one of excisability of the chemical preparation of photographic use . 5. At the very outset, Mr. Desai, learned Senior Counsel for the respondents raised preliminary objection that the appeal filed by the Revenue is not maintainable before this Court. This in view of Section 35G(1) of the Act, which excludes the jurisdiction of this Court from an order of the Tribunal dealing with issue of rate of duty of excise i.e. manufacture or not for the purpose of assessment. As it is evident from the questions, the issue is in respect of marketablity of goods so as to beco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Vectra Helicorp Ltd. (supra) was whether the service is rendered by Global Vectra Helicorp Ltd. during the period 1st May, 2008 to June, 2010 could be classified under Section 65 (105)(zzzz)(1)(j) of the Act as contended by the Revenue or not at all under the Finance Act, 1994 as contended by the appellant assessee therein. Thus, the case of the assessee was the Finance Act, 1994 has no application to its activity. In the above case, the Revenue has raised an objection about the maintainability of the appeal, as giving rise to an issue of classification. This Court after having considered the amended provision of Section 35L i.e. 35L(2) of the Act, entertained the appeal. This on the ground that it was not a case of deciding between the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal to this Court and, thereafter, to the Supreme Court. 10. So far as facts of this case are concerned, there seems to be an apparent conflict between Global Vectra Helicorp Ltd. (supra) and Bajaj Auto Ltd. (supra). We are conscious of the fact that Bajaj Auto Ltd. (supra) did not notice Global Vectra Helicorp Ltd. (supra). At the same time, we note the fact that although Global Vectra Helicorp Ltd. (supra) did in terms refer to Section 35L(2) of the Act, it did not notice the binding decision of the Apex Court in Navin Chemicals Mfg. Trading Co. Ltd. Vs. Collector of Customs, 1993 (68) E.L.T. 3 . Moreover, it was rendered without taking into account the decisions of this Court in Union of India Vs. Auto Ignation Ltd. 2002 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) to Section 35L of the Act. Thus, the decision in Global Vectra Helicorp Ltd. (supra) cannot be said to be per incuriam. As against the above, there is a different view taken by this Court in Bajaj Auto Ltd., (supra) by inter alia placing reliance upon Navin Chemicals Ltd. (supra). 12. Therefore, taking into account the fact that the issue involves the very jurisdiction of this Court to entertain appeals from orders of the Tribunal, it would be best that apparent conflicting views of this Court one as indicated in Global Vectra Helicorp Ltd. (supra) and the other in Bajaj Auto Ltd. (supra), be resolved by a larger bench of this Court. 13. This would ensure certainty of law so far as the litigants in the State ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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