2018 (11) TMI 1725 - HC - Central Excise

Maintainability of appeal - appropriate forum - appealable order in terms of Section 35L(2) of CEA - taxability or excisability of goods - scope of amendment made to Section 35L of the Act on 6th August 2014 by insertion of subsection (2) therein - HELD THAT - The issues thus pending before the Larger Bench relate to the Appeals from the order of the Tribunal passed prior to 6th August 2014 i.e. the date from which subsection 2 was inserted in Section 35M of the Central Excise Act 1944 - n that view of the matter it would not be necessary to await the outcome of the reference by the Larger Bench in those cases where the order of the Tribunal impugned is one passed after 6th August 2018 since such a question is not pending before the Larger Bench. Stand over to 5th December 2018 for hearing of this appeal.

Summary

Issues:
1. Referral of questions to Larger Bench regarding taxability and excisability of goods.
2. Clarification on the applicability of Section 35L(2) of the Act.
3. Determination of whether the amendment to Section 35L of the Act is clarificatory or prospective.

Analysis:
The High Court, in this appeal, noted that a Division Bench had adjourned the hearing to await the decision of the Larger Bench in a specific case concerning the taxability and excisability of goods. The Division Bench had referred two questions to the Larger Bench for consideration. The first question pertained to whether the issue of taxability or excisability of goods is an issue of rate of duty appealable only to the Supreme Court under Section 35L(2) of the Act, even for appeals from orders passed before the insertion of Subsection (2) on 6th August, 2014. The second question related to whether the amendment to Section 35L of the Act in 2014 was clarificatory or prospective in nature.

The issues before the Larger Bench specifically concerned appeals from Tribunal orders predating the insertion of Subsection (2) in Section 35L on 6th August, 2014. The High Court determined that it was unnecessary to await the outcome of the reference by the Larger Bench in cases where the Tribunal's order being challenged was issued after 6th August, 2018, as the questions referred were not relevant in such instances. Therefore, the High Court scheduled the hearing of the appeal for 5th December, 2018, indicating that the matters pending before the Larger Bench were distinct from those where the Tribunal's order postdated the relevant amendment to Section 35L of the Act.