2009 (1) TMI 456 - HC - Service Tax

Question of law- Appeal is preferred to the High Court on the basis of question of law. Held that-the appeal is competent before the High Court from every order passed in appeal by the Appellate Tribunal. It is, thus, evident that no appeal would be competent against an order which answers the question referred to the Full Members Tribunal, especially, when the appeals are yet to be decided by the Division Benches of the Tribunal.

Summary

Issues:
Appeal under Section 35G of the Central Excise Act, 1944 against order dated 28-8-2006; Maintainability of appeal against orders emerging from the appeal decided by the Tribunal.

Analysis:
The judgment pertains to an appeal filed under Section 35G of the Central Excise Act, 1944 against an order dated 28-8-2006. The Full Members Tribunal had answered two questions of law and directed that the appeal be placed before the Division Benches of the Tribunal for a decision on merits based on the answers provided. The learned Senior Counsel raised a preliminary objection regarding the maintainability of the appeal under Section 35G of the Act. He argued that appeals are only maintainable against orders arising from appeals decided by the Tribunal. The specific emphasis was placed on the use of the term "appeal" in Section 35G(1) of the Act, which outlines the conditions for filing an appeal to the High Court. The section states that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal. The Court, after a perusal of the relevant section, concluded that no appeal would be competent against an order that answers questions referred to the Full Members Tribunal, especially when the appeals are pending before the Division Benches of the Tribunal. Therefore, the Court sustained the objection raised by the Senior Counsel and dismissed the appeal on the grounds of maintainability.

This judgment provides clarity on the scope and limitations of appeals under Section 35G of the Central Excise Act, 1944. It highlights the importance of understanding the specific language and requirements outlined in the Act for filing appeals to the High Court. The ruling emphasizes that appeals can only be filed against orders arising from appeals decided by the Appellate Tribunal, and not against orders that are yet to be decided by the Division Benches of the Tribunal. The judgment serves as a precedent for interpreting the provisions of the Act concerning the jurisdiction of the High Court in hearing appeals related to excise duty matters.