2017 (4) TMI 32 - HC - Central Excise

Maintainability of appeal - it is claimed that this is not an order falling within the purview of this court s appellate powers. Rather, it pertains to the determination of any question having relation to the rate of duty of excise. Therefore, in terms of sub-section (1) of section 35-L of the Central Excise Act, 1944, an appeal against this order would lie to the Hon ble Supreme Court of India - Held that - The underlying controversy clearly points towards a provision, which is attracted. We have seen that this is an issue squarely falling within the wording, namely, to the determination of any question having relation to the rate of duty of excise . These words in clause (b) of sub-section (1) of section 35-L are of widest amplitude. They cannot be ignored to accept the argument of Mr. Jetly on the maintainability of these appeals and namely that the tribunal having decided only a limited issue these appeals are maintainable. Such bifurcation and of the clear wording of wider amplitude is not permissible - appeal dismissed being not maintainable.

Summary

Issues:
1. Maintainability of appeals under section 35-L of the Central Excise Act, 1944.

Analysis:
The judgment dealt with the maintainability of appeals under section 35-L of the Central Excise Act, 1944. The respondents raised a preliminary objection regarding the jurisdiction of the court to hear the appeals, citing that the appeals should have been filed with the Supreme Court of India. The objection was based on the argument that the order in question pertained to the determination of a question related to the rate of duty of excise, falling within the scope of section 35-L. The court examined the show cause-cum-demand notice, which highlighted the issue of compliance with conditions for selling goods in the domestic tariff area under the Exim Policy. The notice alleged that the appellant had not complied with the conditions set by the Development Commissioner, resulting in the non-payment of full duty as required by the proviso to section 3(1) of the Central Excise Act, 1944.

The court emphasized that the essential issue revolved around the determination of a question related to the rate of duty of excise, as specified in section 35-L. Despite the tribunal addressing only one of the submissions made by the appellant, the underlying controversy still pertained to a provision falling within the ambit of section 35-L. The court noted that the wording of section 35-L, particularly the phrase "to the determination of any question having relation to the rate of duty of excise," was of broad scope and could not be disregarded. Consequently, the court upheld the preliminary objection raised by the respondents and ruled that the appeals were not maintainable before the court. The appeals were dismissed accordingly, directing that they should have been filed with the Supreme Court of India as per the provisions of section 35-L of the Central Excise Act, 1944.