2018 (9) TMI 1203 - HC - Central Excise

Maintainability of appeal - Condonation of 11 days delay in filing the appeal - Held that - In the case of Commissioner of Central Excise Vs. Eon Hinjewadi Infrastructure (P) Ltd. 2018 (9) TMI 665 - BOMBAY HIGH COURT it was held that the jurisdiction of this Court to entertain appeals under Section 35G of the Act is determined by the order passed by the Tribunal and not on the basis of the question framed by the appellant. This Court does not have jurisdiction to entertain the appeal. Therefore, it would be appropriate if the applicants also file their appeal from the impugned order to the Hon ble Supreme Court, if they are so advised - Appeal dismissed as not maintainable.

Summary

Issues: Condonation of delay in filing an appeal under the Central Excise Act, 1944; Jurisdiction of the High Court to entertain appeals under Section 35G of the Act.

Condonation of Delay Issue:
The judgment deals with a motion for condonation of an 11-day delay in filing an appeal arising under the Central Excise Act, 1944 from an order passed by the Customs, Excise and Service Tax Tribunal. The respondent argued that the appeal would not be maintainable before the High Court as the impugned order had been challenged before the Supreme Court and was admitted. However, the applicant contended that the issue raised in the appeal pertained to the Tribunal not following earlier directions of the Supreme Court, making the appeal maintainable before the High Court. The Court noted that the impugned order was already a subject matter of an appeal before the Supreme Court, indicating that the issue was related to the rate of duty or valuation, which falls under the jurisdiction of the Supreme Court. The Court held that it did not have jurisdiction to entertain the appeal and suggested that the applicants file their appeal before the Supreme Court to avoid multiplicity of proceedings. Consequently, the motion for condonation of delay was dismissed.

Jurisdiction Issue:
The judgment also addresses the jurisdiction of the High Court to entertain appeals under Section 35G of the Act. The Court referred to previous judgments, including APM Terminals (I) Pvt. Ltd. Vs. Commissioner of Central Excise and Commissioner of Central Excise Vs. Eon Hinjewadi Infrastructure (P) Ltd., to establish that the jurisdiction of the High Court to entertain appeals is determined by the order passed by the Tribunal and not based on the questions framed by the appellant. The Court emphasized that the High Court does not have jurisdiction to entertain the appeal in this case, as the impugned order was already under consideration in an appeal before the Supreme Court. Therefore, the Court advised the applicants to file their appeal directly with the Supreme Court. This approach was deemed appropriate to prevent a duplication of proceedings and ensure a streamlined legal process.