TMI Blog2021 (11) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can entertain appeal subject of course to the provisions of Section 35G of the Central Excise Act. A reference to Section 35G of the Central Excise Act, 1944 shows that an appeal shall lie to the High Court from every order passed by an appellate Tribunal provided that the High Court is satisfied that the matter involves substantial questions of law. The appeal under Section 35G is a qualified appeal and not an absolute and/or unqualified and/or unrestricted appeal - The High Court has no jurisdiction to go behind or question the facts found by the Tribunal unless on the ground of perversity. A perusal of the order dated 31.03.2017 passed by the Commissioner, will reveal that the show-cause Notices which were issued against the assessee for wrong utilization of credit during the period of March, 2004 to March, 2005 has already been dropped by the Additional Commissioner, Central Excise, Dibrugarh vide order dated 30.01.2009 and there is no pending show cause Notice issued to the assessee in relation to admissibility of CENVAT credit - Tribunal had correctly rendered a finding that the benefit of exemption has been denied to the assessee. Since, as discussed above, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Appeal are as under: (i) The assessee namely the respondent herein is engaged in the manufacture of Pan Masala and Pan Masala containing tobacco classifiable under Chapters 21 and 24 of the First Schedule to the Central Tariff Act, 1985 at its factory situated at Jorhat, Assam. The appellant is availing the benefit of exemption under Notification No. 8/2004-CE dated 21.01.2004, as amended by Notification No. 28/2004-CE dated 09.07.2004. The period in dispute in this appeal is from March 2004 to March 2005. (ii) Order dated 06.02.2007 was issued by the Commissioner whereby the direction was made for recovery of amount deposited in the Escrow account by way of forfeiture for the alleged violation of the conditions of the exemption notification availed by the appellant as aforesaid. Against the said order, in the appeal filed by the assessee, the Tribunal vide Order dated 06.08.2007 remanded the matter back to the Commissioner for fresh consideration since the aforesaid orders were issued without granting opportunity of being heard in violation of principles of natural justice. (iii) Pursuant to the Tribunal s Order dated 06.08.2007, the Commissioner re-decided the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner was therefore, not required to re-decide the Credit Eligibility of the impugned order. The Tribunal, therefore, held that the amount paid by the assessee by Challan cannot be retained by the Department and is liable to be refunded. The appeal was, accordingly, dismissed. 3. Being aggrieved, the present appeal has been filed by the Department on the substantial questions of law urged. The learned counsel for the appellant submits that vide the Order-in- Original No. 01/COMMR/ADJ/CE/DIB/08 dated 30.01.2008, the forfeiture of the amount of ₹ 98,89,695.00 and ₹ 3,88,344.65 makes the total amount forfeited as ₹ 1,02,92,040.00 (Rupees One Crore Two Lakh Seventy two Thousand Forty only). As such the amount being above the monetary limit prescribed by the Ministry of Finance vide instructions of Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes Customs dated 22.08.2019 fixing the monetary limit of ₹ 1 Crore as the limit below which Appeals cannot be filed before High Court, it does not debar the Department from maintaining the present Appeal. On merits, the learned counsel for the appellant submits that in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the assessee submitted that in this appeal, the financial involvement is ₹ 98,83,695.35/- only and as such in terms of the Ministry of Finance Instructions dated 22.08.2019, the monetary limit involved in this matter being below ₹ 1 Crore, the appeal is not maintainable and the same should be dismissed in Limine as not maintainable. Notwithstanding that the learned Senior counsel submits that even on merits this Appeal is not maintainable as there are no substantial questions which arises in the facts of the case which require any deliberation. The dispute sought to be agitated by the appellant relates to factual issues which have been correctly arrived at by the Tribunal. As per the mandate of Section 35G of the Central Excise Act; appeals to the High Court can be admitted only on substantial questions of law. The learned Senior counsel for the assessee submits that as there are no substantial questions of law made out, the appeal merits dismissal in Limine. The learned Senior counsel for the appellant has referred to the Judgment of the Apex Court in Commissioner of Income Tax vs. Hotel Allied Trades Pvt. Ltd, reported in (2019) 18 SCC 735 to buttress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the Supreme Court, High Courts and CESTAT. All other terms and conditions of concerned earlier instructions will continue to apply. 4. It may be noted that issues involving substantial questions of law as described in para 1.3 of the instruction dt 17.08.2011 from F.No. 390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits. 5. Since withdrawal of Departmental Appeals is a long drawn activity requiring routine and constant monitoring, formats have been introduced in the Monthly Performance Report for all field formations to send monthly reports regarding status of withdrawal of appeals in the MPR (refer table P/P-1).Details of the said cases should also be available in a separate register for further perusal by the Board as and when required. Tables are in the Annexure-A attached. The description of the Tables in brief is provided below. a) Table P: Position of withdrawal with reference to raised monetary limits SC / HC / CESTAT (as per in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the appellant:- A. Whether the Hon ble CESTAT, Kolkata is correct in holding that the duty payment made by the assessee through CENVAT credit is proper and admissible ignoring the conditions stipulated in Rule 6 of CENVAT credit Rules 2004. B. Whether Hon ble CESTAT has erred in allowing the refund of the duty paid through TR- 6 challan. C. Whether Hon ble CESTAT has erred in setting aside the decision of the Ld. Commissioner issued vide OIO No. 07 / ADJ / CE / DENOVO/CINNR/DIB/17 dated 31.03.2017 ordering not to allow further CENVAT credit for the period March, 2004 to March, 2005. D. Whether Hon ble CESTAT, Kolkata has erred in not appreciating the ratio laid down by the Hon ble Apex Court in the civil appeal no. 3327/2007 in the matter of Commissioner of Customs, Mumbai Vs- Dilip Kumar and Company Ors which is also squarely applicable in the instant case. 8. A reference to Section 35G of the Central Excise Act, 1944 shows that an appeal shall lie to the High Court from every order passed by an appellate Tribunal provided that the High Court is satisfied that the matter involves substantial questions of law. The appeal under Section 35G is a qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, it means on the facts and circumstances found by the Tribunal and not about the facts and circumstances that may be found by the High Court. We have earlier referred to the facts found and the circumstances relied on by the Tribunal, the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statements of fact made by the Tribunal. The statement of the case is binding on the parties and they are not entitled to go-behind the facts found by the Tribunal in the statement. 10. As discussed above, as per the mandate of the amended Section 35G of the Central Excise Act that there must be a substantial question of law in order to prefer an appeal before the High Court against the order of the Tribunal. The Apex Court while dealing with the provisions of Section 260A of the Income Tax Act, 1961, where the provisions of appeal to the High Court are pari materia with the provisions of Section 35 of the Central Excise Act; held that the conditions mentioned in Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion is of general public importance, or (3) whether it is an open question in the sense that the issue is not settled by pronouncement of this Court or Privy Council or by the Federal Court, or (4) the issue is not free from difficulty, and (5) it calls for a discussion for alternative view. There is no scope for interference by the High Court with a finding recorded when such finding could be treated to be a finding of fact. 11. In the light of law laid down by the Apex Court, the substantial questions of law as urged by the appellant in the present proceedings will have to be examined. 12. We have carefully perused the substantial questions of law presented by the appellant. It is seen that substantial questions A, B and C pertains to allowing of CENVAT credit. A perusal of the order dated 31.03.2017 passed by the Commissioner, will reveal that the show-cause Notices which were issued against the assessee for wrong utilization of credit during the period of March, 2004 to March, 2005 has already been dropped by the Additional Commissioner, Central Excise, Dibrugarh vide order dated 30.01.2009 and there is no pending show cause Notice issued to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 28/2004 dated 09.07.2004 and Rule 6 of the CENVAT Credit Rules, 2004. Accordingly, we do not find any substantial questions of law in respect of Question Nos. A, B and C as sought to be raised by the appellant. 13. In so far as the substantial question D is concerned, the appellant has referred to the Judgment of the Apex Court in Commissioner of Customs (Imports), Mumbai -Vs- Dilip Kumar and Company and Ors, reported in (2018) 9 SCC 1 to submit that the impugned order of Judgment of the CESTAT/Tribunal is in violation of the ratio laid down by the Apex Court in this case . 14. We have carefully perused the Judgment of the Apex Court in Dilip Kumar (Supra), the ratio in the said Judgment lays down the principle for interpretation of taxing statute as well as the exemption provisions or exemption notification. The Apex Court has held that the question whether the assessee falls within the notification or the exemption clause, has to be strictly construed and when once the ambiguity or doubt is resolved by interpreting the applicability of exemption clause strictly, the Court may construe the notification by giving full play bestowing wider and liberal constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law arises in this appeal and we are therefore, not persuaded to accept this appeal in view of the mandate of Section 35G of the Central Excise Act, 1985. 16. Before parting, we would like to observe that although it was not pleaded specifically in the appeal that the Judgment of the Tribunal suffered from perversity because of wrong appreciation of facts, however it was orally submitted by the learned counsel for the appellant that the Judgment of the Tribunal is perverse and should be therefore suitably interfered with. 17. The provisions of Section 35G mandates that an appeal under Section 35G of the Central Excise Act can only be admitted/heard by the High Court only on the substantial question of law framed. However, in the present proceedings, there was no substantial question of law framed by the appellant with regard to the perversity as raised by the appellant. Notwithstanding such a question not being specifically framed by the appellant, it is certainly open for the Court to frame such substantial question of law subject, however, to such pleadings being available to demonstrate as to how the impugned order of the Tribunal suffers from perversity. In the absen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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