2017 (7) TMI 795 - HC - Central Excise

Maintainability of appeal - Held that - there is no dispute to the fact that the appeal involves the determination of the question having relation to the rate of duty of excise which inter-alia includes the exemption of the duty. A Division Bench of this High Court in the case of Commissioner of Custom and Central Excise Vs. Eco Products (I) Pvt. Ltd., 2013 (6) TMI 120 - ALLAHABAD HIGH COURT , in relation to Section 35 (G) and 35 (L) of the Central Excise Act held that where a question is based on the eligibility of the goods manufactured by the manufacturer for exemption under any notification, such question of exemption is directly and proximately related to the rate of duty for the purpose of assessment of excise duty payable and as such is excluded from the purview of appeal before the High Court under Section 35 (G) of the Act and the remedy is to file an appeal before the Apex Court under Section 35 (L) of the Act. Appeal dismissed being not maintainable.

Issues:
1. Appeal against common judgment and order in original passed by CESTAT.
2. Delay in filing the defective appeal.
3. Maintainability of appeals before the High Court regarding the rate of duty of excise and exemption from excise duty.

Analysis:
1. The judgment pertains to two Central Excise Appeals challenging a common judgment and order passed by CESTAT. The Excise Department initially filed a common appeal, which was later objected to by the respondents due to the nature of the orders in respect of two appeals. Subsequently, a separate Central Excise Defective Appeal was filed due to the objection, leading to a delay in its presentation. The court accepted the explanation for the delay, condoned it, and allowed the appeal to be within time, directing the office to allot a regular number to the defective appeal.

2. The respondents raised a preliminary objection regarding the maintainability of the appeals before the High Court. The objection was based on the contention that the appeals involved questions related to the rate of duty of excise, including exemption from excise duty. Citing relevant provisions from the Central Excise Act and the Finance Act, it was argued that such questions fall under the purview of appeals before the Honorable Supreme Court. The court referred to previous judgments and held that issues concerning the determination of the rate of duty of excise, including exemption, are not maintainable before the High Court but should be addressed through appeals before the Supreme Court. Consequently, both appeals were dismissed as not maintainable, directing the appellants to seek recourse before the Supreme Court in accordance with the law.

3. The case involved the provision of customer care service by the respondents to customers of a mobile phone company, which was initially sought to be taxed under the Finance Act, 1994. However, the Tribunal ruled that the export of service remained tax-free. The Excise Department appealed against this decision, arguing that the service provided by the respondent was not exempted and should be liable to tax. The court acknowledged that the appeal indeed concerned the determination of questions related to the rate of duty of excise, including exemption. Citing relevant legal precedents, the court concluded that the appeals were not maintainable before the High Court and should be pursued before the Supreme Court.

In conclusion, the judgment addressed the issues of appeal against a common judgment by CESTAT, delay in filing a defective appeal, and the maintainability of appeals before the High Court regarding the rate of duty of excise and exemption from excise duty. The court accepted the explanation for the delay, but ultimately dismissed both appeals as not maintainable, directing the appellants to approach the Supreme Court for further proceedings in accordance with the law.

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