TMI Blog2019 (12) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of appeal before the High Court, nature of the order has to be considered and not the issue sought to be raised by the appellant. In fact this is evident from the plain language of Section 35-G of the Act, which provide that an appeal shall lie to the High Court from every order passed by the Tribunal not being an order relating to determination of any question having relation to the rate of duty of excise or to the value of goods for purpose of assessment. Thus, the consistent opinion of the courts is that the dispute, as to whether or not the assessee is covered by the exemption notification, relates directly or proximately to the rate of duty applicable thereto for the purpose of assessment, hence, High Courts will not have jurisdiction to entertain appeal pertaining to that, it being in exclusive jurisdiction of Hon ble the Supreme Court - there are no 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 duty or of the value of goods for the purposes of assessment. The aforesaid provision provided that in such eventuality appeal shall lie against the order passed by the Tribunal directly to Hon ble the Supreme Court. There is a rationale behind. The aforesaid two important issues have ramification throughout the country and the Act, being a central statute, idea is to bring uniformity in its application. It was further submitted that even before the Tribunal, important issues are to be heard and decided by a special Bench consisting of two or more members. 4. Substantiating his argument further, learned counsel for the assessee submitted that in the case in hand the issue regarding grant of exemption i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 issue is pending consideration before Hon ble the Supreme Court wherein direction was for release of 50% of the amount due to the assessee on furnishing solvent surety whereas 50% of the amount was stayed. Finally the appeals were disposed of directing the parties to abide by any order passed by Hon ble the Supreme Court in the pending litigation involving identical issue and till such time the interim arrangement was to continue. The Tribunal had accepted the appeals relying upon the judgment of this Court. 7. Further the argument raised is that the Central Board of Excise and Customs has issued a Circular dated 17.08.2011 specifying monetary limit for filing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 against the judgment of this Court in Bharat Box case(supra) was disposed of alongwith a bunch of appeals as the legal issue was decided in case of M/s SRD Nutrients Pvt. Ltd vs. CCE, Guwahati, 2017 (355) ELT 481 (SC). He further submitted that the question of law as have been framed by the revenue is to camouflage this court if seen on the face of it. Rather what is required to be considered is the substance of the matter. It is the duty of the Court to frame/reframe the substantial questions of law, if any, at the time of admission of the appeal, which arise out of the order passed by the Tribunal. In the case in ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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 the Customs Act but with similar provisions. The issue was regarding the Bench of the Tribunal which could hear the appeal. It was opined therein where the issue involved is regarding exemption notification, it has proximity to the rate of duty applicable for the purpose of assessment. Applying the aforesaid judgment Division Bench of High Court of Punjab Haryana in AST Paper Mill s case (supra) opined that where the question is as to whether the assessment is covered by an exemption notification or not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 attained finality, such as the benefits to which they are entitled to, refunds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regarding interpretation of exemption notifications dated 14.11.2002, 27.03.2008 and 10.06.2008, which will have effect or valuation of goods for the purpose of levy of duty, hence appeals before this Court will not be maintainable. 26. For the reasons mentioned above, in our view, appeal before this Court against the order passed by the Tribunal will not be maintainable as the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
