2018 (9) TMI 1437 - HC - Central Excise

Maintainability of appeal - alternate remedy of appeal before Supreme Court - Section 35L(b) of the Central Excise Act, 1944 - Held that - As per Section 35L(b) of the Central Excise Act, 1944, any order passed by the Appellate Tribunal relating, to among 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, the appeal lies before the Hon ble Supreme Court. When the appellant has an alternative remedy to prefer an appeal before the Hon ble Supreme Court, the present appeal is not maintainable. Reliance placed in the case of CCE., MANGALORE VERSUS MANGALORE REFINERIES & PETROCHEMICALS LTD. 2010 (9) TMI 756 - KARNATAKA HIGH COURT , where it was held that an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of duty of excise or to the value of goods for the purposes of assessment lies to the Supreme Court under Section 35L(b) of the Act and not to the High Court under Section 35G. The appeal is dismissed as not maintainable.

Summary

Issues:
- Maintainability of appeal under Section 35G of the Central Excise Act, 1944 before the High Court

Analysis:
The appellant filed an appeal under Section 35G of the Central Excise Act, 1944, challenging the Final Order made by the Customs, Excise and Service Tax Appellate Tribunal. The respondent raised a preliminary objection regarding the maintainability of the appeal, citing Section 35L(b) of the Act, which provides for an alternative remedy to appeal before the Supreme Court. The respondent relied on a judgment of the Division Bench in a similar case to support the contention that the present appeal is not maintainable before the High Court.

The appellant's counsel argued in favor of the appeal's maintainability. The Commissioner of Central Excise, Belgaum had dropped proceedings against the respondent in 2005, which led to the appeal before the Tribunal. However, the Tribunal rejected the appeal in 2016. The provisions of Section 35L(b) clearly state that appeals related to the determination of duty rates or goods' value for assessment must be directed to the Supreme Court. The judgment cited by the respondent further supported this interpretation, emphasizing that appeals falling under Section 35L(b) should be directed to the Supreme Court, not the High Court under Section 35G.

Based on the legal provisions and the precedent set by the Co-ordinate Bench, the High Court concluded that the present appeal under Section 35G is not maintainable before them. The Court declined to interfere in the matter and dismissed the appeal, granting the appellant the liberty to pursue the alternative remedy available in accordance with the law. The judgment was delivered in line with the established legal principles and the specific provisions of the Central Excise Act, 1944.