2010 (2) TMI 425 - HC - Central Excise

Maintainability - . On perusal of the show cause notice, the question is in regard to evading of duty of Central Excise and the question is whether at what rate the respondent Company has to pay the excise duty provided the same is liable to be paid by the respondent. The revenue has come up in this appeal challenging the legality and correctness of the order passed by the Tribunal, wherein the Tribunal by allowing the appeal of the respondent has set aside the demand of duty. Held that- the appeal filed under Section-35G of the Central Excise Act, 1944, before this Court is not maintainable.

Summary

Issues involved:
1. Challenge to the order passed by the Customs, Excise and Service Tax Appellate Tribunal.
2. Substantial questions of law raised in the appeal.
3. Question of maintainability of the appeal under Section-35G of the Central Excise Act, 1944.

Analysis:
1. The appeal was filed challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal, which set aside the demand of duty and penalty imposed on the respondent. The substantial questions of law raised included the legality of relying on statements of concerned persons, the evidentiary value of retraction of earlier statements, and the correctness of the assumption made by the CESTAT regarding evasion of duty.

2. During the final hearing, the respondent's counsel argued that the appeal was not maintainable under Section-35G of the Central Excise Act, 1944, as it related to the rate of duty and excise. The counsel contended that if the appellant was aggrieved by the Tribunal's order, the matter should be taken up before the Supreme Court. The show cause notice issued by the revenue indicated the dispute was about evading central excise duty and the rate at which the respondent company had to pay the duty.

3. The Court held that since the dispute was regarding the duty payable by the respondent, the appeal filed under Section-35G was not maintainable before the High Court. Consequently, the appeal was dismissed on grounds of maintainability, with liberty granted to the appellant to pursue the remedy before the Supreme Court if desired.

This judgment highlights the importance of the maintainability of appeals under specific sections of the Central Excise Act, the nature of disputes that determine the appropriate forum for appeal, and the legal considerations involved in challenging tribunal orders related to duty and excise rates.