TMI Blog2023 (5) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... e controversy beyond the pale of doubt that the issues posed for adjudication are falling in the category of exceptions and, as a consequence, the High Court would not have the jurisdiction to entertain appeal against the order of CESTAT. The provision makes it clear that determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of the goods for the purpose of assessment . The Full Bench of Bombay High Court considered identical issue in the case of Commissioner Central Excise, Mumbai-V -Vs- Reliance Media Works Limited [ 2019 (12) TMI 392 - BOMBAY HIGH COURT] has held that Appeals from orders of the Tribunal relating to taxability/excisability passed prior to 6th August, 2014 i.e. the date of insertion of sub-section (2) to section 35-L of the Act being a rate of duty issue, would be appealable only to the Hon'ble Supreme Court and not the High Court. Similar interpretation, as was made the by Bombay High Court in the above judgment, has been made by various other High Courts in the judgments relied upon by the learned counsel for the appellant. We are in complete agreement with the view taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aspect of maintainability of these appeals have been heard. The circumstances leading to filing of the appeals were thoroughly analyzed. The applicable statutory provisions, the impugned orders and precedents cited at bar have been perused. 4. Mr. D. Sen and Mr. D. Das, learned counsel representing the respondent vehemently and fervently contended that as the only issue involved in these appeals is regarding determination of taxability of the goods for the purpose of assessment of service tax, by virtue of Section 35L of the 1944 Act, the appeal from an order of the Appellate Tribunal would lie to the Hon ble Supreme Court and not to the High Court. They urged that the High Court can entertain an appeal from an order passed in appeal by the Appellate Tribunal only upon being satisfied that the appeal involves substantial question of law and that case does not arise from an order relating, amongst 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 purpose of assessment. They placed reliance upon the following judgments in support of their arguments: (a) Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial available on record. 7. The question regarding maintainability of these appeals falls within a very narrow compass. The relevant provisions of law, i.e. Sections 35G and 35L of the 1944 Act, which have a bearing on the issue are reproduced hereinbelow for the sake of ready reference: 35G. 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 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 the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) any judgment of the High Court delivered (i) in an appeal made under section 35G; or (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 35H, 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 excise or to the value of goods for purposes of assessment. [(2) For the purposes 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.] 8. The very substantial question of law, which has been proposed by the appellant, raises an issue about the liability or otherwise of the assessee to pay service tax on transportation of goods by pipeline ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l on the issue of taxability/excisability would lie to the Hon'ble Supreme Court and cannot be entertained by this Court. Further, this Court in Bajaj Auto Ltd. (supra) also held that section 35- L(2) of the Act which was inserted into the Act w.e.f. 6th August, 2014 was only clarificatory in nature. This as the issue of excisability/taxability was a rate of duty issue at all times. 4. Briefly the facts leading to this reference are as under: (a) On 20th November, 2013, the Tribunal passed the impugned order allowing the respondent's appeal. This by holding that chemical preparations for photographic use are not marketable, therefore, not goods. Thus, not classifiable under chapter 37 heading 3707 of the Central Excise Tariff Act, 1985. (b) Being aggrieved by order dated 20th November, 2013, the Revenue filed an appeal under section 35- G(1) of the Act to this Court. (c) At the hearing of the above appeal before the Division Bench, the respondent assessee raised a preliminary objection, viz. that the appeal filed by the Revenue is not maintainable before this Court as it deals with excisability of goods. In support, it placed reliance upon the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court were also not considered. Moreover, before the referring Division Bench, the parties did not dispute that post insertion of sub-section (2) to section 35-L of the Act, w.e.f. 6th August, 2014, orders of the Tribunal relating to taxability of services and excisability of goods would be appealable to the Hon'ble Supreme Court,. (f) It is in view of the aforesaid conflict between the two views of this Court, as indicated in Global Vectra Helicorp Ltd. (supra) and Bajaj Auto Ltd. (supra), that the aforesaid questions have been referred by the Division Bench to the Full Bench. 5. We have heard Mr. Bangur, for the appellant Revenue and Mr. Sridharan, learned Senior Counsel who appears for the appellant in Central Excise Appeal No. 33 of 2018 where he states an identical question would arise in an appeal filed by M/s Shoppers Stop Ltd. Both of them support the proposition that appeals from orders of the Tribunal in respect of excisability/taxability will lie to this Court. We have also heard Mr. Desai, learned Senior Counsel, who appears for the respondent-assessee to contend that the appeal from orders of the Tribunal in respect of excisability/taxability will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class or category of assessees as a whole. The above decision will not apply to a decision of the Tribunal dealing with taxability/excisability which necessarily would require determining the rate of duty for the purpose of assessment. It is only on deciding the taxability of services or excisability of goods that a rate of duty can be decided. The words determination of any question having a relation to rate of duty of excise for the purpose of assessment as found in the context of section 35-G and 35-L of the Act was a subject of consideration by this Court in Sterlite Optical Technologies Ltd. v. Commissioner of Central Excise, 213 ELT 658. This Court held that the word assessment has a very comprehensive meaning, i.e. it can comprehend the whole procedure for ascertaining and imposing duty liability. Thus, the words for the purpose of assessment would cover even the issue of the Tribunal deciding excisability and/or taxability as it is a part of the process of assessment. Besides, the answer to the question whether a product/service is excisable/taxable will not only have an impact on a dispute between parties inter se but would have an all India impact and, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value-of goods for the purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. 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 proximatley as to the rate of duty or the value of the goods. (emphasis supplied) From the above, it is clear that the Apex Court noted that the classification of goods under the Tariff for the purpose of determining the rate of duty would be a question having relation to the rate of duty. Thus, the above observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee therein raised a preliminary objection about the jurisdiction of the High Court to entertain the Revenue's appeal on the above dispute. The Delhi High Court, while following the decision of the Hon'ble Supreme Court in Navin Chemicals (supra), in particular para 11 thereof, held that the orders of the Tribunal deciding the issue of taxability would be appealable to the Supreme Court. It noted in paragraphs 18 and 19 as follows: 18. On reading of the said paragraph, it is lucid and clear that Supreme Court had stated that questions relating to rate of duty and valuation for the purpose of assessment as defined in the explanation to subsection (5) to section 129-D of the Customs Act, would include question relating to classification of goods under the tariff, whether or not they are covered by exemption notification; whether value for the purpose of assessment should be enhanced or reduced etc. It was further observed that statutory definition accords to the meaning given to the expression above. For the purpose of present controversy, we are inclined to ignore and not take into consideration explanation 5 to section 129-D or subsection (5) to section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also contended by the appellant Revenue that insertion of subsection (2) to section 35-L of the Act that taxability/excisability would be a rate of duty issue w.e.f. 6th August, 2014 would itself imply that prior to 6th August, 2014, the issue of taxability/excisability was appealable to the High Court. This submission on behalf of the Revenue cannot be accepted in view of the various decisions referred to hereinabove where the Courts have held that issue of excisability of goods and taxability of services are appelable to the Hon'ble Supreme Court even prior to the insertion of sub-section (2) to section 35-L of the Act. The introduction/insertion of subsection (2) to section 35-L of the Act was done as a matter of abundant caution so as to clarify and make explicit what was implicit in section 35-G(1) and 35- L(1)(b) of the Act. This was done only to ensure that the Courts do not waste time examining the issue again and again, when the issue has already been decided by various Courts upon which the respondent assessee has placed reliance. This in support of its case that an appeal with respect to taxability/ excisability is maintainable only before the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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