2014 (11) TMI 701 - HC - Central Excise

Maintainability of Appeal before High Court - Issue involved is of classification of goods - tribunal has remanded back the order - Section 35L - Whether present appeal fall within the exclusion clause contained in sub-section (1) of Section 35G - Held that - central and in fact the sole issue before the Tribunal was with respect to classification of the goods. Such issue was decided by the Tribunal in a particular manner. It is this decision which the assessee has challenged in the present appeal. Such appeal, in our view, would not lie before this Court. The fact, that the Tribunal instead of taking a final decision on the issue, remanded the proceedings for fresh consideration before the Commissioner, in our view, would not make any difference. Respondent is correct in pointing out that the present appeal is not maintainable and the same is dismissed only on that ground - Decided against assessee.

Summary

Issues Involved:
1. Competence and jurisdiction of the Appellate Tribunal in remanding the case on new grounds.
2. Legality of the Tribunal's action in sending the case for fresh adjudication on issues not arising from the show cause notice, adjudication order, or review application.
3. Legality of allowing the Revenue to raise new grounds in an application filed under Section 35E(1) of the Central Excise Act, 1944.
4. Maintainability of the appeal before the High Court under Section 35L of the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Competence and Jurisdiction of the Appellate Tribunal:
The appellant questioned the Tribunal's competence and jurisdiction in remanding the case to the original adjudicating authority based on new grounds, evidence, and issues not raised in the show cause notice or the Revenue's appeal. The Tribunal remanded the proceedings to the Commissioner for fresh consideration, emphasizing the need to look at the manufacturing process as a whole and consider further verifications or tests if requested by the manufacturer. The Tribunal noted several aspects that the Commissioner had not taken into account, such as the difference in temperature, the period of steeping, the impact of Sulphur Dioxide, and the use of non-standard equipment in chemical tests. The Tribunal directed a thorough re-examination, including fresh chemical examination of the sample and comparison with specifications for plain and modified starch.

2. Legality of Tribunal's Action in Sending the Case for Fresh Adjudication:
The appellant argued that the Tribunal's action of sending the case for fresh adjudication on issues not arising from the show cause notice, adjudication order, or review application was illegal. The Tribunal's judgment highlighted that the Commissioner did not adequately consider the deposition of the Chemical Examiner, the laboratory tests conducted by the respondents, and the impact of Sulphur Dioxide. The Tribunal felt that the matter required a detailed re-examination, considering all relevant parameters of plain and modified starch.

3. Legality of Allowing the Revenue to Raise New Grounds:
The appellant contended that the Tribunal erred in allowing the Revenue to raise new grounds, pleas, and a completely new case in an application filed under Section 35E(1) of the Central Excise Act, 1944. The Tribunal's decision to remand the case was based on the observation that the Commissioner had not fully considered the manufacturing process and the technical literature supporting the Revenue's contentions. The Tribunal directed the Commissioner to conduct a fresh chemical examination and consider all relevant parameters to determine the correct classification of the product.

4. Maintainability of the Appeal before the High Court:
The Revenue raised a preliminary objection regarding the maintainability of the appeal, arguing that the Tribunal's decision pertained to the classification of goods, which under Section 35L of the Act, should be appealed to the Supreme Court. The High Court examined the relevant provisions and concluded that the central issue before the Tribunal was the classification of goods, which falls under the exclusion clause in Section 35G(1) of the Act. The High Court noted that the Tribunal's judgment related to the determination of a question having a relation to the rate of duty or the value of goods for assessment purposes. Therefore, the appeal was not maintainable before the High Court and should be filed before the Supreme Court.

Conclusion:
The High Court dismissed the appeal on the ground of maintainability, stating that the central issue pertained to the classification of goods, which falls under the jurisdiction of the Supreme Court as per Section 35L of the Central Excise Act, 1944. The civil application was also disposed of accordingly.