2018 (9) TMI 824 - HC - Central Excise

Excisability/marketability - Classification of goods - chemical preparations for photographic use - whether classifiable under Chapter 37 heading 3707 of the Central Excise Tariff Act, 1985? - Held that - The Registry is directed to place the papers and proceedings of the present appeal before the Hon ble the Chief Justice to obtain suitable directions to place following questions of law before the larger bench of this Court to decide the matter - (a) Whether the question of taxability or excisability of goods is an issue of rate of duty arising from orders of the Tribunal which are appealable only to the Supreme Court in terms of Section 35L(2) of the Act applies even to appeals from order of the Tribunal passed prior to 6th August, 2014 (i.e. the date of insertion of Sub-section (2) to Section 35L of the Act)? - (b) Whether the amendment made to Section 35L of the Act on 6th August, 2014 by insertion of sub-section (2) therein, is clarificatory or prospective in nature? Matter referred to Larger Bench.

Summary

Issues involved:
- Appeal under Section 35G of the Central Excise Act, 1944 challenging the order of the Tribunal
- Questions of law regarding marketability and excisability of goods
- Violation of principles of natural justice
- Disapproval of marketability of goods established in previous order
- Failure to appreciate the order of the Apex Court
- Conflict regarding jurisdiction of the High Court to entertain appeals from Tribunal orders

Analysis:
1. The appeal challenges the Tribunal's order holding that "chemical preparations for photographic use" are not marketable goods under Chapter 37 heading 3707 of the Central Excise Tariff Act, 1985, impacting their excisability.

2. The primary issue is the excisability of the "chemical preparation of photographic use," which hinges on its marketability. The absence of marketability renders goods non-excisable.

3. The respondents argue that the appeal is not maintainable before the High Court due to jurisdictional limitations under Section 35G(1) of the Act, suggesting the remedy lies with the Supreme Court.

4. The conflicting views in previous cases, such as Global Vectra Helicorp Ltd. and Bajaj Auto Ltd., raise questions about the High Court's jurisdiction to entertain appeals on issues of taxability and excisability.

5. The conflicting interpretations of the amended Section 35L of the Act, especially regarding the appealability of Tribunal orders pre and post the 2014 amendment, require clarification to ensure consistency in legal interpretation.

6. Given the conflicting views within the High Court, it is deemed necessary to refer the matter to a larger bench to resolve the apparent conflict and provide clarity on the jurisdictional aspect of entertaining appeals from Tribunal orders.

7. The Registry is directed to present the case before the Chief Justice for the constitution of a larger bench to address key questions regarding the appealability of taxability and excisability issues from Tribunal orders, ensuring uniformity in legal interpretation and jurisdictional clarity.