2020 (1) TMI 1067 - HC - Central Excise

Maintainability of appeal - Section 35G of the Central Excise Act - appeal wrongly labelled as Section 130 of the Customs Act, 1962 - HELD THAT - Since the provisions of the Central Excise Act, 1944 and the Customs Act, 1962 are in pari materia in this regard, the question relating to the rate of Duty or valuation can be appealed before the Hon ble Supreme Court under the provisions of Section 35L under the Excise Law and under Section 130E(b) of the Customs Act, whereas in respect of other questions of law, Appeals can be maintained before the High Court under Section 35G of the Central Excise Act or under Section 130 of the Customs Act, 1962 - once the Appeals have been preferred against the same order of the learned CESTAT before the Hon ble Supreme Court, presumably, being fully aware that the question of rate of Excise Duty and valuation of the goods are involved in the matter and those Appeals having been dismissed by the Hon ble Supreme Court and the Review Petitions also having been dismissed, it leads no scope open to the Assessee to maintain any Appeal before the High Court resorting to appeal under Section 35G of the Central Excise Act or Section 130 of the Customs Act before the High Court. The Customs Act, 1962 is not at all involved in the present case and therefore, the wrong quoting of the provisions, whether it is bona fide or inadvertent mistake, cannot be appreciated. It is more so because Section 35L, under which an Appeal to the Hon ble Supreme Court is provided for on the question of rate of duty or valuation, sub-section (2) of Section 35L provides for the determination of any question having relation to the question of Duty, and therefore, the Hon ble Supreme Court may consider the question of any other issue for the purpose of assessment and therefore, the issues other than the rate of Duty or valuation can also be determined by the Hon ble Supreme Court in the Appeal filed under Section 35L of the Central Excise Act and therefore, with the dismissal of Appeal by the Hon ble Supreme Court in the present case, the order of the learned Tribunal had acquired finality at the hands of the Hon ble Supreme Court. No issue could be permitted to be raised before this court just by labeling the Appeal now under Section 35G of the Central Excise Act, as if the same order of CESTAT can be again assailed by an Appeal under the provisions of Section 35G of the Central Excise Act raising certain questions. The Appellant is estopped from doing so by the principles of res judicata as well as constructive res judicata - appeal not maintainable and is dismissed.

Issues involved:
1. Appeal filed under Section 35G of the Central Excise Act in the High Court after dismissal of similar appeals by the Supreme Court.
2. Misquoting of provisions by the Assessee.
3. Applicability of Section 35L of the Central Excise Act and Section 130E(b) of the Customs Act.
4. Finality of the Tribunal's order after dismissal by the Supreme Court.
5. Estoppel based on principles of res judicata and constructive res judicata.

Detailed Analysis:
1. The High Court addressed the issue of the Assessee filing appeals under Section 35G of the Central Excise Act in the High Court after similar appeals were dismissed by the Supreme Court. The Court noted that since the Appeals had already been dismissed by the Supreme Court, the Assessee was estopped from maintaining any further appeal before the High Court under Section 35G of the Central Excise Act or Section 130 of the Customs Act, 1962. The Court emphasized that the dismissal of appeals by the Supreme Court left no scope for the Assessee to appeal again on the same grounds.

2. The Court expressed dissatisfaction with the misquoting of provisions by the Assessee, labeling the appeal under the wrong provision. Despite acknowledging the similarity between the provisions of the Central Excise Act, 1944, and the Customs Act, 1962, the Court highlighted the importance of correctly identifying the applicable provisions when filing appeals to ensure legal clarity and accuracy.

3. The judgment delved into the applicability of Section 35L of the Central Excise Act and Section 130E(b) of the Customs Act concerning the rate of Duty or valuation issues. It clarified that while appeals related to these specific matters could be raised before the Supreme Court under Section 35L, other questions of law could be addressed in appeals before the High Court under Section 35G of the Central Excise Act or Section 130 of the Customs Act, 1962.

4. The Court emphasized the finality of the Tribunal's order following its dismissal by the Supreme Court. It highlighted that the dismissal of appeals by the Supreme Court meant that the Tribunal's order had acquired finality, precluding the Assessee from challenging it further through appeals in the High Court.

5. Lastly, the judgment discussed the principle of estoppel based on res judicata and constructive res judicata. The Court concluded that the Assessee was estopped from raising any new issues before the High Court after the dismissal of appeals by the Supreme Court. Despite expressing dismay at the misuse of legal processes by the Assessee, the Court chose not to impose costs but dismissed the appeals and related petitions.

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