TMI Blog2023 (8) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal which relate to taxability or excisability passed prior to 6 August, 2014, i.e., the date on which Section 35L(2) of the 1944 Act, came to be inserted, being an issue on rate of duty, would be appealable only before the Supreme Court and not before the High Court. The Full Bench also held that the amendment made to Section 35L of the Act was clarificatory in nature and, had a retrospective in operation. Even otherwise Section 35H of the 1944 Act which provides for an appeal to the High Court, clearly carves out an exception in regard to exclusion of matters not 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 purposes of assessment, which is now the legislative clarification as provided by an amendment as incorporated to Section 35L by insertion of sub-section (2), which is a clarification in relation to the entire Chapter in question namely Chapter VI-A dealing with the Appeals. The present appeals raise an issue on the taxability of the services in question, hence these appeals are not maintainable before this Court. - G.S. KULKARNI JITENDRA JAIN, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these appeals for the periods as noted above. 5. We had taken up these appeals for hearing when Mr. Mishra on behalf of the respondent/revenue has raised a preliminary objection to the maintainability of these appeals before this Court, contending that the issue raised in these appeals, is in regard to determination of taxability of the services for the purpose of assessment. Referring to the provisions of Section 35H and 35L of the Central Excise Act, 1944, (for short the 1944 Act ) as made applicable to the service tax, Mr. Mishra would submit that on the issue on determination of taxability, the appeals would lie before the Supreme Court. He has also drawn our attention to a recent order passed by this Court in case of The Principal Commissioner of CGST and Central Excise, Mumbai East Commionerate Vs. ICICI Bank Ltd. Central Excise Appeal No. 13 of 2021 decided on 8th June 2023. This Court, in such case, had considered an objection as raised on behalf of the respondent/assesses therein, on the maintainability of the Revenue s appeal. The Court has noted the provisions of the 1944 Act, as extended to the Finance Act, 1994, in relation to levy of service tax. In such deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to in clause (a) of subsection (2), if it is satisfied that there was sufficient cause for not filing the same within that period.] (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Provided that nothing in this sub-section shall be deemed to take away a bridge the power of Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which (a) has not been determined by the Appellate Tribunal, or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision of such question of law as is referred to in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such issue that the appeals which arises from the orders of the Tribunal which relate to taxability or excisability passed prior to 6 August, 2014, i.e., the date on which Section 35L(2) of the 1944 Act, came to be inserted, being an issue on rate of duty, would be appealable only before the Supreme Court and not before the High Court. The Full Bench also held that the amendment made to Section 35L of the Act was clarificatory in nature and, had a retrospective in operation. The relevant observations as made in paragraphs 10, 12,13 and 14 of the orders of this Court in the case of ICICI Bank Ltd. (supra) are required to be noted which read thus :- 10. On a cumulative reading of the provisions of Section 83 of the Finance Act, 1944 read with the provisions of Section 35G and 35L of the CE Act, we are of the clear opinion that necessarily the law itself provides that an appeal would lie to the Supreme Court from an order passed by the Appellate Tribunal. The question which arises for determination is one having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. 12. Insofar as the decisions as cited on behalf of the respondent, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Section 35L of the 1994 Act. 10. Even otherwise Section 35H of the 1944 Act which provides for an appeal to the High Court, clearly carves out an exception in regard to exclusion of matters not 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 purposes of assessment, which is now the legislative clarification as provided by an amendment as incorporated to Section 35L by insertion of sub-section (2), which is a clarification in relation to the entire Chapter in question namely Chapter VI-A dealing with the Appeals. 11. Mr. Shridharan, learned counsel on behalf of the appellant, however, has opposed the preliminary objection as raised by Mr. Mishra referring to decision of the Supreme Court in case of Commissioner of Central Excise, Hyderabad Vs. Shriram Refrigeration Industries 2022 (382) ELT 20 (SC). On a reading of the said decision, it is seen that in the facts and circumstances of such case, the Supreme Court was of the opinion that the dispute in question has no relation to the value of the goods and/or the dispute with respect to the valuation. In such con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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