2024 (3) TMI 753 - HC - Central Excise

Jurisdiction - appropriate forum - Maintainability of the present appeal before the High Court - withdrawal of SSI exemption - applicability of bar as provided under Clause (1) of Section 35G of CEA - jurisdiction of High Court to entertain the appeal - HELD THAT - An appeal would lie to the High Court, if the High Court is satisfied that the case involves a substantial question of law, however, appeal would not lie, if the same pertains to determination of any question having relation to the rate of duty of excise or to the value of goods for purposes of assessment. In Commissioner of Central Excise, Jaipur vs. Electro-Mechanical Engineering Corporation Ors. 2008 (7) TMI 77 - SUPREME COURT , appeal was filed by the Commissioner of Central Excise, when the benefit of SSI Exemption was denied by the Revenue on the ground that respondent had floated two front units in order to fraudulently avail the SSI Exemption. The said appeal was filed before the Apex Court knowing pretty well that appeal is not maintainable before the High Court. In that case, appeal was entertained by the Apex Court. In the case in hand, SSI Exemption for payment of central excise duty has been granted to the respondent. If this exemption is withdrawn, excise duty would become leviable and consequently, it would be an order relating among other things to the determination of any question having a relation to the rate of duty of excise. Further, if the exemption is withdrawn, the goods will be valued for the purpose of assessment and thus, it would fall within the exception as provided under Clause (1) of Section 35G of the Act - There being a specific bar on entertaining of appeal, if the question pertains to rate of duty of excise or the value of goods for the purpose of assessment, the present appeal is not maintainable before the High Court. It is not required to entertain the present appeal on the ground of lack of jurisdiction - appeal dismissed.

Summary

Issues involved:
The issues involved in the judgment are the maintainability of an appeal under Section 35G of the Central Excise Act, 1944 and whether the case involves a substantial question of law.

Maintainability of the appeal under Section 35G:
The appellant filed an appeal under Section 35G of the Central Excise Act, 1944 challenging an order of the Excise & Service Tax Appellate Tribunal. The respondent raised an objection to the maintainability of the appeal, citing a previous judgment. The appellant argued that the cited judgment was not applicable to the present case as it pertained to a different section of the Customs Act. The appellant contended that the SSI Exemption was withdrawn by the Department due to the respondent having three Undertakings, making them ineligible for exemptions. The appellant also argued that the High Court had jurisdiction to entertain the appeal, despite the respondent's opposition.

Arguments and Case References:
The appellant relied on various case references to support their arguments, including "Sunsuk Industries vs. Commissioner of Central Excise, Mumbai-IV", "Annapoorna Re-Rolling (P) Ltd. vs. Cestat, Chennai", "Expo-Fyn Electricals & Electronics vs. Commissioner of C. Ex. Jaipur-I", and "Principal Commissioner of Central GST vs. Maniar And Co.". On the other hand, the respondent referenced the case of "Commissioner of Central Excise, Jaipur vs. Electro-Mechanical Engineering Corporation & Ors." to support their position that the appeal was not maintainable under Section 35G of the Act.

Decision on Maintainability:
After considering the arguments and examining Section 35G of the Act, the Court concluded that the appeal was not maintainable before the High Court. The Court highlighted that if the SSI Exemption was withdrawn, excise duty would become leviable, falling within the exception under Section 35G. Additionally, if the value of goods for assessment purposes was in dispute, it would not fall within the jurisdiction of the High Court. The Court emphasized the specific bar on entertaining appeals related to the rate of duty of excise or the value of goods for assessment, leading to the dismissal of the appeal due to lack of jurisdiction.

Final Decision:
In view of the lack of jurisdiction, the Court declined to entertain the appeal and dismissed it as not maintainable. The stay application was also disposed of accordingly.