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TMI Blog2018 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case and in law, the Tribunal was correct in setting aside the demand of limitation after having held in favour of the Revenue on merits?" 3. The impugned order of the Tribunal dated 31st October, 2017 dismissed the respondents assessee's appeal on merits. This by holding that the valuation of the Superior Kerosene Oil (SKO) (goods) for the purposes of assessment of duty would be on the basis of the value recovered from the oil marketing companies and not the retail price fixed by the Government under the administrative price mechanism. The period involved in the appeal was 1st September, 2000 to 6th September, 2004 for which the show-cause notice was issued on 30th September, 2005. However, the demand was held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. In support, the decisions of this Court in Facor Steel Ltd. Vs. Commissioner, 2015 (320) ELT A357 and Mahindra Ugine Steel Co. Ltd. Vs. Commissioner of Central Excise, Pune-1, 2009 (13) S.T.R. 214 were relied upon. In Facor Steel Ltd. (supra) this Court has admitted the appeal after holding that it is maintainable even if the order of the Tribunal to the extent of valuation is accepted and the challenge in this Court is restricted only to limitation. It is submitted the facts here are identical. So far as the decision of this Court in Mahindra Ugine Steels Co. Ltd. (supra), this Court in fact finally disposed of the appeal by way of remand to the Tribunal on the ground and that the contention of the appellant therein with regard to valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the nature of question proposed by the appellant, it is for the Court to formulate the substantial question of law in the context of the order being impugned. Therefore, if the order of the Tribunal is an order relating to a question having relation to the rate of duty or value of goods for the purposes of assessment, the jurisdiction of this Court is barred by virtue of Section 35G of the Act. In fact, the Punjab and Haryana High Court in Principal Commissioner of C.Ex.& S.T. Vs. Raja Dyeing, 2017(5) G.S.T.L. 231 the issue whether the appeal is maintainable or not has to be decided on the basis of the nature of order passed by the Tribunal i.e. whether it is an order that determines any question having relation to the rate of duty of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that the present appeal ought to be considered for admission on the issue of limitation which alone has been urged after accepting the valuation. 10. So far as the decision to admit the appeal in Century Enka (supra) is concerned, we are of the view that it would have no application to the present facts as the challenge was in respect of penalty imposed. This as the issue of valuation as determined by the Tribunal was accepted by both sides. According to us, Section 35G(1) of the Act bars an appeal being filed in this Court from the order of the Tribunal relating to the determination of any question having a relation to the rate of duty or value of goods for purposes of assessment. The issue of the assessment of goods to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, there is no discretion available with the Authorities under the Act. This as it is mandatory when the demand is confirmed. Therefore, the admission of appeal from the order of the Tribunal only on penalty under Section 11AC of the Act, without any challenge to the confirmation of the demand on issue of valuation and / or rate of duty issue is an empty formality. This submission of the Counsel ignores the fact that the merit of the appeal itself will not determine the issue of maintainability under Section 35G of the Act, which is a threshold issue. 12. In any case, it is agreed position between the parties that the apparent conflict of views of this Court in APMM Terminals India Pvt. Ltd. (supra) and Facor Steel Ltd. (supra) are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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