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TMI Blog2019 (12) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... f J&K at Jammu in O.W.P. No. 470/2008 along with connected petitions titled "Reckit Benckiser V/S U.O.I and Ors" on 23.12.2010 when the same is challenged before the Divisional Bench of the High Court of J&K at Jammu in L.P.A (O.W) No. 20/2011 titled "U.O.I. and Ors V/s Reckit Benckiser" along with connected appeals and vide interim order dated 13-12-2012, the judgment passed by the writ court is modified and an identical matter is pending disposal before the Hon'ble Supreme Court of India. b. Whether tribunal was right in holding that respondent is entitled to 100% refund when the matter is pending disposal before the Hon'ble High Court of J&K at Jammu and the Hon'ble Supreme Court of India." 3. At the very outset, learned counsels for the respondents raised a preliminary objection regarding the maintainability of the appeals before this Court. While referring to the provisions of Section 35-G and 35-L of the Central Excise Act, 1944 (for short 'the Act'), it was submitted that appeal against the order passed by the Tribunal does not lie in case the order of the Tribunal besides other things, involves issue regarding determination of any question having relation to the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be not maintainable before the High Court. Reference was also made to the order passed by this Court in Commissioner of Central GST & Central Excise vs. M/s Gravita Metals (CEA No. 4 of 2018 decided on 12.10.2018). 6. Coming to the historical background of the litigation, it was submitted that vide Notification No. 56 of 2002 dated 14.11.2002 exemption was granted which was in the form of refund or adjustment of the excise duty paid. The aforesaid notification was issued in exercise of powers conferred on the government under Section 5A of the Act. While the aforesaid exemption notification was still in operation, the benefits available wherein were curtailed vide Notification No.19/2008-Central Excise dated 27.03.2008 and No. 34/2008-Central Excise dated 10.06.2008. The aforesaid notifications were challenged by number of assesses before this Court and the same were set aside by the Learned Single Judge vide judgment in Reckitt Benckiser vs. Union of India, 2011 (269) ELT 194 (J&K). The matter was taken up in appeal before a Division Bench of this Court. Initially interim stay was granted, however, the orders were modified subsequently keeping in view the fact that identical iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of this Court in Reckitt Benckiser's case (supra) whereas the appeal against the same was pending (which now stands disposed of). In view of the aforesaid facts the Tribunal should have kept the matter pending. He further submitted that the revenue has not raised any question with reference to exemption in the appeals in hand. It is only regarding the propriety of the proceedings before the Tribunal. 10. He further submitted that the department will be at disadvantageous position in the case of the assesses who had not challenged the notification curtailing the exemption as in those cases there is no interim stay, whereas in the cases where writ petitions were filed by the assesses the department is only to pay 50% amount to them at this stage. He further submitted that the judgment of the learned Single Judge was applicable only to the petitioners before this court and not to those assesses who had not approached the court. He further submitted that the revenue had challenged the order passed by this Court in Bharat Box Factory's case (supra) before Hon'ble the Supreme Court. 11. In response, learned counsel for the assessee submitted that the appeal filed by the revenue again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al] by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. For the purpose of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment." 15. A perusal of Section 35-G of the Act shows that an appeal lies to this Court from every order passed in appeal by the Tribunal except in a case where the order relates, among other things, to determination of any question having relation to the rate of duty of excise or to the value of goods for purpose of assessment. While excluding the jurisdiction of the High Court to deal with the aforesaid issues, appeal has been provided directly from the order of the Tribunal, on the aforesaid issues, to Hon'ble the Supreme Court, as provided for in Section 35-L of the Act. As to the interpretation of the aforesaid exception carved out in Section 35-G of the Act is concerned, issue was initially considered by Hon'ble the Supreme Court in Navin Chemical's case (supra). It was a case under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words in sections are plain and unambiguous, the plain and literal interpretation has to be 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 v. Mangalore Refineries & Petrochemicals Ltd., 2011 (270) E.L.T. 49 (Kar.) 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 between the Apex Court and the High Court seems to be that more often than not, any decision on these aforesaid aspects not only affects the interest of the manufacturers who are parties thereto, but also to the manufacturers of those products throughout the country. In a country governed by Parliamentary legislation because of the territorial bifurcation in forming states and because of the divergent opinion which is possible, the excise duty payable would vary from place to place. In order to bring uniformity in the levy of excise duty throughout the country and consequently to see that the country's f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid judgment was decided by Hon'ble the Supreme Court with SRD Nutrients' case (supra). 23. We do not find any substance in the argument raised by the learned counsel for the revenue that judgment of this Court deciding the validity of a notification will be a judgment in personam and not in rem and will apply only to the petitioners before the Court. As the opinion expressed by this Court was declaration of law, it will apply uniformly to all the assesses concerned without any exception, irrespective of the fact whether any party had approached the Court or not. 24. As far as the contention raised by the learned counsel for the assessee that the present appeal before this Court will not be maintainable because of the amount of duty involved, keeping in view circular issued by the Board. We are of the opinion that the argument is totally misconceived for the reason that there are bunch of appeals filed before this Court on the same legal issue and the amount involved therein is substantial, hence, piecemeal appeals cannot be dismissed only on account of maintainability on the ground of the amount involved. 25. As far as the case in hand is concerned, the issue involved is rega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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