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TMI Blog2017 (12) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... PPEAL NO.2860 OF 2008 FIRST APPEAL NO.3869 OF 2008 - - - Dated:- 23-11-2017 - RAVINDRA .V. GHUGE AND SUNIL K. KOTWAL, JJ. Shri D.S. Ladda, Advocate for appellant Shri S.M. Godsay, Advocate for respondent ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.): 1. In both these appeals, the appellant Central Excise Customs Department, (hereinafter referred to as the Revenue Department), seeks to challenge the order dated 4.12.2007, and 4.3.2008, passed by the Customs, Excise Service Tax Appellate Tribunal (CESTAT), West Zone, Bench at Mumbai in two cases. The prayers put forth by the appellant are almost identical, except the dates of the order and the amount mentioned in the demand notice and penalty under Rule 173-Q. 2. Learned counsel for the respondent assessee is aggrieved by the lodging of these appeals in this Court, for the reason that, these appeals are not maintainable under Section 35-G of the Central Excise Act, 1944. It is contended that, this Court does not have jurisdiction to entertain these appeals, and notwithstanding the fact that the appeals have been admitted, jurisdiction cannot vest in this Court when such jurisdiction is not specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing of a spray, which carried the brand names like 'Climax', 'Numic' and 'Stud'. (e) The labels applied to the above products on the cans while being sold, indicate that, the said material is to be used as a stimulant for the purposes of sexual activities. (f) Exemption in the taxes on anesthetic material is specially prescribed by legislation so as to ensure that the said product used for the purposes of administering anesthesia by anesthetists, would lead to reducing the cost of the product, and as such, consequently would reduce the cost of medical treatment and the financial burden on the patients. (g) If the said material is to be used as a sex stimulant and not for any surgery, the respondent needs to be deprived of the concessions/ exemption granted. (h) By the first order dated 31.10.1997, the Assistant Commissioner of Central Excise Customs, Aurangabad confirmed the demand pursuant to the show-causenotices issued. (i) The order dated 31.10.1997 reads as under : FIRST APPEAL NO.2860/2008 I) I confirm the demand of ₹ 17,37,276=82 as mentioned in the above Show Cause Notices after denying notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 35-G, which permits the filing of an appeal in the High Court. Section 35-G reads as under :- 35-G. Appeal to High Court : [Omitted by the National Tax Tribunal Act, 2005 (49 of 2005), Section 30 and Schedule, Part VII (w.e.f. 28.12.2005)] Explanation : 1. . . . . . . 2. Prior to its omission, S.35-G read as under : 35-G. Appeal to High Court : (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. 9. The underlined portion of Section 35-G leads to a plain and simple meaning that an appeal, challenging an order passed by the Tribunal and relating to, amongst other things, the determination of any question having a relation to the rate of the duty of excise or to the value of the goods, for purpose of assessment, would not be maintainable before this Court. 10. Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35-G since the category which was excluded from the appeal before the High Court under Section 35-G of the Act is expressly included under Section 35-L of the Act. The demarcation of the subject matter of appeal before this Court and the Apex Court was with some object and purpose and when the words in sections are plain and unambiguous, the plain and literal interpretation has to be adopted. It is useful to refer to paragraph 44 of the judgment of the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore Vs. Mangalore Refineries Petrochemicals Ltd. (supra) where the Karnataka High Court has noticed the intention behind the bifurcation of jurisdiction between the Apex Court and the High Court. Following was laid down by the Karnataka High Court in paragraph 44, which is as under : 44. The intention behind this bifurcation of jurisdiction between the Apex Court and the High Court seems to be that more often than not, any decision on these aforesaid aspects nor only affects the interest of the manufacturers who are parties thereto, but also to the manufacturers of those products throughout the country. In a country governed by Parliamentary legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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