2018 (11) TMI 1082 - HC - Central Excise

Maintainability of appeal - Time Limitation - issue based on valuation and / or rate of duty - assessment of goods - appeal under Section 35G of the Act - Difference of opinion - Held that - Registry is directed to place the papers and proceedings of the present appeal before the Hon'ble the Chief Justice to obtain suitable directions to place the following questions of law before the larger bench.

Issues involved:
1. Challenge to order dated 31st October, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal under Section 35G of the Central Excise Act,1944.
2. Reframed question of law regarding the demand of limitation after holding in favor of Revenue on merits.
3. Valuation of Superior Kerosene Oil (SKO) for duty assessment.
4. Maintainability of appeal under Section 35G of the Act.
5. Acceptance of Tribunal's order on valuation by both parties.
6. Jurisdiction of High Court to entertain appeal based on the nature of the order passed by the Tribunal.
7. Conflict of views between different decisions on the issue of maintainability of appeals.
8. Requirement for a larger bench to resolve the conflict and provide clarity on the law.

Detailed Analysis:
1. The appeal challenges the Tribunal's order dated 31st October, 2017, which dismissed the respondent's appeal on merits, focusing on the valuation of Superior Kerosene Oil (SKO) for duty assessment. The Tribunal held that the valuation should be based on the value recovered from oil marketing companies, not the retail price fixed by the Government under the administrative price mechanism, for the period from 1st September, 2000 to 6th September, 2004. However, the demand was considered time-barred due to the non-invocation of the proviso to Section 11A of the Act.

2. The main question of law raised by the Revenue concerns the correctness of the Tribunal's decision to set aside the demand of limitation after ruling in favor of the Revenue on merits. The issue revolves around whether the Tribunal was justified in its approach considering the facts and circumstances of the case and the applicable law.

3. The parties discussed the maintainability of the appeal under Section 35G of the Act, focusing on the jurisdiction of the High Court to entertain the appeal. Both parties accepted the Tribunal's decision on valuation, leading to the conclusion that the appeal would be maintainable based on the issue of limitation alone. The Counsel referenced previous decisions to support their arguments on maintainability.

4. A conflict of views emerged regarding the interpretation of Section 35G(1) of the Act and the nature of the order passed by the Tribunal, impacting the jurisdiction of the High Court to entertain appeals. The Court highlighted the need for a larger bench to resolve the conflicting interpretations and provide clarity on the law to ensure consistency in decisions related to appeals under various Acts.

5. The Court directed the Registry to present the case before the Chief Justice to seek guidance on referring the questions of law to a larger bench for resolution. The questions raised focused on the maintainability of appeals under Section 35G of the Act concerning issues of limitation, valuation, and rate of duty, emphasizing the need for a definitive ruling to guide future cases and ensure legal certainty for litigants.

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