TMI Blog2021 (12) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... 35L(2), it is expressly clarified that 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 purposes of assessment. It was also observed in the said case of STEEL AUTHORITY OF INDIA LTD. VERSUS DESIGNATED AUTHORITY, DIRECTORATE GENERAL OF ANTI-DUMPING ALLIED DUTIES OTHERS [ 2017 (4) TMI 881 - SUPREME COURT] that before admitting an appeal under Section 130E(b) of the Customs Act, 1962 (which is pari materia to Section 35L of the Excise Act), the question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty and that this is a sine qua non for the admission of the appeal before this Court and such question must involve a substantial question of law which has not been answered or on which there is a conflict of decisions. It was further held in this case that if the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion, the same must be allowed to rest even if this Court is inclin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not fall within the purview of public importance falling under Section 35L of the said Act. In this case, it is not the case of the respondent-assessee that the issue of limitation decided by the Tribunal would involve the question of any general/public importance - the issue as to whether the revenue could have invoked the extended period of limitation for recovery of excise duty being a question of fact and/or a mixed question of fact and law, only such order cannot be impugned before the Hon ble Supreme Court under Section 35L of the said Central Excise Act. The issue of limitation raised in this Central Excise Appeal has no direct or proximate relationship to the rate of duty and the value of goods for purposes of assessment. Only such questions which relate to the rate of duty and the value of goods for purposes of assessment would squarely fall within the meaning of the said expression determination of any question having relationship to the rate of duty and to the value of goods for the purposes of assessment - the adjudication on the said issue of limitation in the Central Excise Appeal filed by the revenue under Section 35G before this Court even remotely, would not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by Division Bench of this Court in case of Facor Steels Ltd. v/s. Commissioner, 2015 (320) E.L.T. A357 (Bom.) and formulated two questions for consideration by Larger Bench, which Larger Bench is accordingly constituted pursuant to the Administrative Order passed by the learned Chief Justice in view of the said order dated 6th September, 2018. The Division Bench has referred following questions of law to the Full Bench. (i) Whether on the facts and circumstances of the case and in law, the issue of a demand being time barred when it is made on the basis of valuation and / or rate of duty, is an issue relating to the assessment of goods and, therefore, an appeal under Section 35G of the Act, is not maintainable before this Court ? (ii) Whether an appeal under Section 35G(1) of the Act would be maintainable before this Court when there is no dispute with regard to the rate of duty and / or valuation as arrived at by the Tribunal (both parties accept the decision of the Tribunal on that issue) and challenge the impugned order only to the extent of the demand being barred by limitation ? 2. It would be appropriate to set out few facts for better appreciation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Act and also as to why penalty should not be imposed on them under Section 11AC of the said Act and / or Rule 173Q read with 209 of the Central Excise Rules, 1944 and under Rule 25 of the Central Excise Rules, 2001/2002. In the said show-cause notice, the respondent was also called upon to show-cause as to why interest under Section 11AA/AB of the said Act should not be charged and recovered from them. 7. On 30th October, 2007, the Commissioner of Central Excise, Belapur adjudicated upon the said show-cause notice dated 30th September, 2005 and held that the respondent had paid the duty on a lower value which purportedly was the subsidized value fixed by the Oil Coordination Committee for PDS sale. According to the impugned order, the respondent had recovered higher value from Oil Coordination Committee than the value on which they had paid the Central Excise duty which is not permissible as per amended Section 4 of the said Act introduced w.e.f. 1st July, 2000. The Commissioner also held that the respondent is also liable to pay interest under Section 11AB of the said Act. 8. The respondent had raised the point of time bar claim on the ground that there was no cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962. He submits that Section 35L of the Central Excise Act is in pari materia with Section 130E of the Customs Act, 1962 similarly Section 35G with Section 130 of the Customs Act. 12. It is submitted by the learned senior counsel that in this case, the order passed by the Commissioner of CGST Central Excise confirming the demand of duty and payment of interest and penalty against the respondent is upheld by the said Tribunal. The respondent has not impugned the said order passed by the Tribunal confirming the demand made in the show-cause notice regarding payment of duty, interest and penalty. He submits that only the revenue has impugned the order passed by the Tribunal setting aside the demand made by the revenue against the respondent on the ground of limitation. 13. Learned senior counsel submits that the issue of limitation which is subject matter of the Central Excise Appeal filed by the revenue is not an order 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 the purposes of assessment. Thus the said issue would not be covered by the exclusion placed in the bracket of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of APM Terminals India Pvt. Ltd. (supra) more particularly paragraph 11 and would urge that the issue before this Court in the said judgment was whether the consideration which is received under the head of Cargo Handling services is in fact consideration received for services classifiable under Storage and Warehousing services as claimed by the revenue. No substantial question of law is formulated by this Court on the issue of limitation by the Division Bench in case of APM Terminals India Pvt. Ltd. (supra) as has been framed in this matter. 18. Ms. Padmavati Patil, learned counsel for the respondent submits that her client has not disputed the order passed by the Commissioner on the issue of recovery of duty, interest and penalty by preferring an appeal before the Tribunal, as such and has accepted that part of the order. It is vehemently submitted that the issue of limitation has no direct relation to the rate of duty or value of goods for the purposes of assessment. The issue of limitation is inter-se issue in the facts of this case. She has strongly placed reliance on the judgment of the Hon ble Supreme Court in case of Commissioner of Customs, Bangalore-1 v/s. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Tribunal and not the scope of the appeal that determines the maintainability of the appeal under Section 35G. 21. It was also considered in the above decision whether an appeal lies to the High Court under Section 35G or to the Supreme Court under Section 35L cannot possibly depend upon the nature or scope of the appeal that the party intends filing. A party may seek to challenge only that part of the order of the Tribunal which relates to questions other than those relating to the rate of duty of excise or the value of the goods for the purposes of assessment. Such an appeal would, absent any other question, lie to the High Court. Once it is held that an appeal against the order of the Tribunal which deals with questions that fall within the ambit of Section 35L as well as other questions lies to the Supreme Court under Section 35L, the mere fact that the party chooses to challenge only that part of the order that falls within the ambit of Section 35G would make no difference. It cannot be said that the party that chooses to challenge the order of the Tribunal only so far as it relates to the determination of questions falling within the ambit of Section 35G m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent of the appeal that is determinative of whether the appeal would be maintainable before the High Court or not but rather the nature of the order which is impugned in the appeal which determines the issue. 24. Mr. Murtaza Najmi, learned counsel sought to intervene in this matter so as to assist this Court on the question of law referred to the Full Bench by the Division Bench and would submit that the issue of limitation being a mixed question of fact and law, appeal cannot be preferred before the Hon ble Supreme Court under Section 35L of the said Act. 25. Sections 35G(1), 35H(1) and 35L of the Central Excise Act, 1944 are extracted as under :- Section 35G(1) :- Appeal to High Court (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order 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), if the High Court is satisfied that the case involves a substantial question of law. Section 35H(1) :- Application to High Court (1) The Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie to the Supreme Court from (a) any judgment of the High Court delivered (i) in an appeal made under Section 130; or (ii) on a reference made under Section 130 by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under Section 130A, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed (before the establishment of the National Tax Tribunal) by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment. 27. It is admitted position that the Commissioner of Central Excise and Customs in the order dated 30th October, 2007 had confirmed the demand made in the show-cause notice in respect of excise duty, interest payable under Section 11AB and also penalty under Section 11AC of the said Act. The Commissioner of Central Excise rejected the plea of limitation raised by the respondent herein on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court only. Under Section 35L(2), it is expressly clarified that 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 purposes of assessment. 31. It was also observed in the said case of Steel Authority of India Ltd. (supra) that before admitting an appeal under Section 130E(b) of the Customs Act, 1962 (which is pari materia to Section 35L of the Excise Act), the question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty and that this is a sine qua non for the admission of the appeal before this Court and such question must involve a substantial question of law which has not been answered or on which there is a conflict of decisions. It was further held in this case that if the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter. 32. In our view, any decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating directly and proximately to the rate of duty applicable thereto for purposes of assessment . It is held that the statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 35. In the facts of this case, order of Tribunal holding that the revenue could not have invoked the extended period of limitation for recovery of excise duty from the respondent-assessee purely based on the finding of facts inter-se and would not fall within the purview of public importance falling under Section 35L of the said Act. In this case, it is not the case of the respondent-assessee that the issue of limitation decided by the Tribunal would involve the question of any general/public importance. 36. In our view, the issue as to whether the revenue could have invoked the extended period of limitation for recovery of excise duty being a question of fact and/or a mixed question of fact and law, only such order cannot be impugned before the Hon ble Supreme Court under Section 35L of the said Central Excise Act. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the goods for the purposes of assessment. The provisions of Sections 130 and 130E of the Customs Act are in pari-materia to Sections 35G and 35L. The said provisions of Sections 130 and 130E have been interpreted by the Hon ble Supreme Court in case of Navin Chemicals Mfg. Trading Co. Ltd. (supra), Steel Authority of India Ltd. (supra) and in case of Commissioner of Customs, Bangalore-1 (supra). The principles laid down in those judgments would apply to the facts of this case. We are respectfully bound by the principles of law laid down by the Supreme Court in those three judgments. 40. In our view, the order of this Court in case of Facor Steels Ltd. (supra) admitting the Central Excise Appeal preferred under Section 35G of the Central Excise Act rejecting the objection relating to issue of maintainability of appeal against the issue of limitation and having admitted the said appeal is the correct view. 41. Insofar as the judgment of this Court in case of APM Terminals India Pvt. Ltd. (supra) relied upon by this Court while referring questions of law to the Full Bench indicates that a classification dispute between the revenue and the assessee was canva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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