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2021 (6) TMI 1038 - HC - Central ExciseMaintainability of appeal - refund of Education Cess and Higher Education Cess - covered under Section 35L or under Section 35G of the Central Excise Act, 1944? - HELD THAT - At present learned counsel representing the Appellant-Revenue facing difficulty regarding agreed proposal made before the CESTAT of applicability of the judgment of the M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI 2017 (11) TMI 655 - SUPREME COURT and relying on the same the order was passed. Later the said judgment has been modified by the Hon ble Apex Court in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS 2019 (12) TMI 286 - SUPREME COURT . However, the counsel for the Appellant-Revenue requests for filing a petition for rectification before the CESTAT, the said prayer appears to be justifiable. This appeal, as requested by the counsel representing the Appellant-Revenue, is disposed of, with a liberty to take appropriate recourse of law for rectification of the order of the CESTAT.
Issues:
1. Maintainability of the appeal before the High Court under Section 35G of the Central Excise Act, 1944. 2. Jurisdiction of the High Court based on the value of the appeal. 3. Applicability of the judgment in the case of M/s Unicorn Industries vs. Union of India and Others. 4. Request for rectification before the CESTAT. Issue 1: Maintainability of the appeal under Section 35G: The Respondent raised objections regarding the maintainability of the appeal before the High Court under Section 35G of the Central Excise Act, 1944. The objections were based on the contention that the matter pertained to refund of Education Cess and Higher Education Cess, falling under Section 35L and not Section 35G of the Act. The Respondent argued that appeals with a value less than Rupees One Crore are not maintainable before the High Court as per the National Litigation Policy. The Appellant, however, argued that the appeal was maintainable as the CESTAT's order was passed prior to a subsequent judgment of the Supreme Court in the case of M/s Unicorn Industries vs. Union of India and Others. Issue 2: Jurisdiction based on the value of the appeal: The Respondent contended that the value involved in the present case was below the threshold set by the National Litigation Policy for appeals before the High Court. The Court found merit in this objection, indicating that appeals with a value less than Rupees One Crore are not maintainable before the High Court. This raised a jurisdictional issue regarding the value of the appeal and its admissibility before the High Court. Issue 3: Applicability of the judgment in M/s Unicorn Industries case: The Appellant faced challenges due to a judgment modification by the Hon’ble Apex Court in the case of M/s Unicorn Industries vs. Union of India and Others. The Appellant sought rectification before the CESTAT based on the changed circumstances arising from the modified judgment. The Court acknowledged the difficulties faced by the Appellant and granted liberty to take appropriate legal recourse for rectification of the CESTAT's order in light of the judgment modification. Issue 4: Request for rectification before the CESTAT: The Appellant- Revenue requested for filing a petition for rectification before the CESTAT due to the changed circumstances arising from the modified judgment in the case of M/s Unicorn Industries vs. Union of India and Others. The Court found the Appellant's request for rectification justifiable and disposed of the appeal, granting the Appellant liberty to seek rectification of the CESTAT's order through appropriate legal means. In conclusion, the High Court addressed various issues concerning the maintainability of the appeal under Section 35G, jurisdiction based on the value of the appeal, the impact of the judgment in M/s Unicorn Industries case, and the request for rectification before the CESTAT. The Court's decision highlighted the importance of legal compliance and the need for parties to address changing legal circumstances through appropriate legal channels.
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