2024 (8) TMI 1148 - HC - Central Excise

Appropriate forum - Jurisdiction of the High Court under Section 35G of the Central Excise Act, 1944 regarding excisability of goods - whether the activity of Respondent-Assessee is manufacturing activity for the purpose of levy of excise duty under the said Act? - HELD THAT - On a conjoint reading of Section 35G(1) read with 35L, there are no doubt that since the issue involved in the present appeal relates to whether the activity of Respondent-Assessee is manufacturing or not so as to be liable for excise duty, it is a question relating to excisability of goods and, therefore, the appropriate Court for filing the appeal to challenge the Tribunal s order would be Supreme Court and not this Court. The reliance placed by counsel for Appellant-Revenue on the decision of Andhra Pradesh High Court and the Supreme Court in the case of COMMR. OF C. EX., HYDERABAD-IV VERSUS SHRIRAM REFRIGERATION INDUSTRIES 2008 (5) TMI 290 - ANDHRA PRADESH HIGH COURT and COMMR. OF C. EX., HYDERABAD VERSUS SHRIRAM REFRIGERATION INDUSTRIES 2023 (2) TMI 213 - SUPREME COURT is not appropriate. The Andhra Pradesh High Court and the Supreme Court in Shriram Refrigeration Industries (supra) were considering the provisions of Sections 35G and 35L as existing prior to insertion of sub-section (2) in Section 35L by Finance (No. 2) Act 2014 with effect from 6th August 2014 and amended provision was not the subject matter of consideration. The appeal is not maintainable before this Court - the Appellant is permitted to present the same before the Supreme Court.

Summary

Issues:
1. Jurisdiction of the High Court under Section 35G of the Central Excise Act, 1944 regarding excisability of goods.

Analysis:
The appeal was filed under Section 35G of the Central Excise Act, 1944, challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal. The substantial questions of law proposed to be raised included whether the activity conducted by the respondent constituted manufacturing activity for the purpose of levy of excise duty. The respondent raised a preliminary objection on the maintainability of the appeal before the High Court, arguing that issues related to excisability of goods fall under the jurisdiction of the Supreme Court, as per Section 35G(1) read with Section 35L(2) of the Act.

The appellant, on the other hand, relied on a decision of the Andhra Pradesh High Court, which was later reversed by the Supreme Court, to support the filing of the appeal before the High Court. The central issue revolved around determining whether the respondent's activity amounted to manufacturing activity for excise duty purposes. Sections 35G(1) and 35L(1)(b) of the Act were examined to ascertain the jurisdiction of the High Court and the Supreme Court concerning questions related to excisability of goods.

The Court analyzed the relevant provisions of the Act and concluded that the issue at hand, concerning the manufacturing activity of the respondent for excise duty, falls under the purview of excisability of goods. Therefore, based on a conjoint reading of Section 35G(1) and 35L, the Court held that the appropriate forum for challenging the Tribunal's order on this issue would be the Supreme Court, not the High Court. The Court rejected the appellant's reliance on previous judgments that did not consider the amended provisions of the Act post-2014.

In light of the above discussion and legal analysis, the Court found that the appeal was not maintainable before the High Court and directed the appellant to present the appeal before the Supreme Court. The Court kept all contentions on the appeal open for further consideration before the appropriate forum.