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TMI Blog2009 (11) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The following substantial questions of law arise from the impugned order of the CESTAT : (a) Whether the order of CESTAT is sustainable in law and whether the Order of CESTAT is legally correct in its interpretation of Section 35C(2) in holding that the ROM has been filed beyond the period of six (6) months especially in view of the fact that the Final Order No. 1897 & 1898/2006 is dated 16-11-2006 was received only on 22-1-2007. The application for Rectification of Mistake was filed on dated 5-6-2007? (b) Whether the order of the CESTAT is sustainable in law especially as it has been dismissed on the ground that the department has not filed the ROM within Six months but yet in another case vide Misc. Order No. 82/2008, dated 11-3-2008, in M/s. Wipro Ltd. v. Commissioner of Customs, Bangalore [2008 (228) E.L.T. 275 (Tri.)] has been pleased to allow the ROM even after six months? (c) Whether Hon'ble CESTAT is correct in considering that the demand is hit by time-bar and therefore not discussing/deciding the issue of classification of spares of x-ray machines and spa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing a show cause notice dated 27-1-2003 issued to the Company and its Manager (Finance), the Commissioner had passed the following order : "I. I confirm the demand of Rs. 11,53,04,274/- (Rs. Eleven Crores fifty three lakhs four thousand two hundred seventy four only), out of the demand of Rs. 11,80,29,801/- on S-cat items vide show cause notice No. DGCEI/PRU/INT/30/2001, dated 21-7-2003, under the provisions of Section 11A(2) of the Central Excise Act, 1944. II. I confirm the demand of Rs. 1,67,96,857/- (One Crore sixty seven lakhs ninety six thousand eight hundred fifty seven only), out of the demand of Rs. 1,85,68,517/- on Spares of X-ray machines and Mobile Image Intensifiers, under the provisions of Section 11A(2) of the Central Excise Act, 1944. III. I impose penalty of Rs. 13,21,01,131/- (Rupees Thirteen crores twenty one lakhs one thousand one hundred thirty one only) on M/s. G.E. Medical Systems X-Ray (South Asia) Ltd., under the provisions of Section 11AC of the Central Excise Act, 1944. IV. I order recovery of interest at appropriate rate on the amounts confirmed at Sr. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection is an appeal of this nature cannot be maintained before this Court u/s 35G as what is sought to be corrected by the Revenue in the order of the Tribunal is a finding relating to rate of duty or classification as it can be called and the question involved to rate or classification having been expressly excluded from the scope of appeal u/s 35G of the Act and in fact such matters to be taken up by way of appeal directly to the Supreme Court and not to the High Court and therefore the appeals are not maintainable. 9. Sri Bhaskar, learned Senior Standing Counsel has very vehemently urged that it is misnomer to call that the present appeals involve any question relating to rate of duty, in fact it is begging question, to be precise, grievance of the appellant in the main appeal is that the Tribunal has failed to record a finding with regard to correctness or otherwise of the order passed by the Commissioner particularly for the purpose of determining the tax liability of the assessee and if no finding is recorded with regard to precise liability of the assessee with reference to the products which the assessee manufactures in the course of its business/manufacturing act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Senior Standing Counsel would submit that even when the Department had sought to bring it to the notice of the Tribunal, that there was a failure of duty on the part of the Tribunal is not recording a finding relating to the question of levy of duty under the Act in respect of spares of Mobile Image Intensifiers and X-ray machine and as such the order of the Tribunal was silent on this aspect to that extent it was required to be corrected and finding recorded, but the Tribunal had missed the point and had simply rejected the application only on the ground of limitation that by itself would constitute question of law worthy an examination u/s 35G of the Act. 11. Sri Shivadas, learned counsel appearing for the assessee pointed out that the judgment of the Supreme Court in the case of Sunitadevi, referred to supra, is not conclusive, that the Supreme Court had an occasion to review the legal position in the case of Commissioner of Central Excise v. Hongo India (P) Ltd. reported in 2009 (236) E.L.T. 417 (S.C.) wherein the Supreme Court had an occasion to make a distinction about the possibilities for entertaining applications/appeals beyond the normal period of limitation on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preliminary objection raised by Mr. Shivadas. 15. Though the real question involved is one relating to levy of duty on the spares which are manufactured by the Assessee which they go as intermediary for their products of X-ray machines and mobile image intensifiers are as products by themselves sold, also dispute being as to whether such spares were subject to duty at 8% as claimed by the assessee or 16% as claimed by the Revenue, it is essentially a dispute relating to the rate of duty with reference to tariff classification and if such is the question it is a subject matter of appeal to Supreme Court after the order passed by the Tribunal and not to the High Court under Section 35G. 16. Though Sri Bhaskar, learned Senior Standing Counsel would make valiant efforts to point out that there is no finding recorded by the Tribunal to indicate as to whether it is dutiable at 8% or 16% and therefore in the absence of a finding, the effort of the revenue being only to elucidate a finding from the Tribunal. For such purpose we have to embark upon the examination of rates of duty as are applicable with reference to classification of the product and as to whether it is a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal has to be examined by this Court alone. 21. The submission of Sri Shivadas, the learned counsel for the respondent who had been put on notice, the appeal itself having not raised any question of law relating to justification or otherwise of the levy of penalty, no need for either admitting the appeal or for further examination. 22. Though Sri Bhaskar, learned Senior Standing Counsel would submit that while it is not incumbent upon the Assessee to indicate substantial question of law in the memorandum of appeal itself and it is for court to formulate such questions and the learned Standing Counsel is very right in his submission and it is only satisfaction of the High Court to an awareness that case involves a substantial question of law and we can show awareness if question is rightly shown to us and even otherwise we are required to examine and find out as to whether substantial question of law arises for examination and we having undertaken such an exercise, we find that it is not necessary to keep this appeal pending here for the simple reason penalty is only a consequential action pursuant to re-determination of duty or adjudicating authority and Sri Shivadas, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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