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TMI Blog2018 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... J.J. Mr. Pradeep S. Jetly for the appellant Ms. Mansi Patil for the respondent P.C. 1. This appeal under Section 35G of the Central Excise Act,1944 (the Act) challenges the order dated 31st October, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (Tribunal). 2. The Revenue has urged the following reframed question of law for our consideration : "Whether on the facts and circumstances of the case and in law, the Tribunal was correct in setting aside the demand of limitation after having held in favour of the Revenue on merits?" 3. The impugned order of the Tribunal dated 31st October, 2017 dismissed the respondents assessee's appeal on merits. This by holding that the valuation of the Superior Kerosene Oil (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant and the respondent submits that the appeal under Section 35G of the Act as filed would be maintainable. This as the issue of valuation for the purposes of assessment of duty, is a concluded issue between the parties as it has been accepted. The only issue which is being urged in this appeal is on account of limitation. Therefore, this Court would have jurisdiction to entertain the appeal. In support, the decisions of this Court in Facor Steel Ltd. Vs. Commissioner, 2015 (320) ELT A357 and Mahindra Ugine Steel Co. Ltd. Vs. Commissioner of Central Excise, Pune-1, 2009 (13) S.T.R. 214 were relied upon. In Facor Steel Ltd. (supra) this Court has admitted the appeal after holding that it is maintainable even if the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elates to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. Thus, the jurisdiction to entertain an appeal would depend/ be determined by the nature of the order passed by the Tribunal. The ingenuity of the advocate in framing the question, cannot change the nature/basis of the order of the Tribunal. In fact, whatever the nature of question proposed by the appellant, it is for the Court to formulate the substantial question of law in the context of the order being impugned. Therefore, if the order of the Tribunal is an order relating to a question having relation to the rate of duty or value of goods for the purposes of assessment, the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt had admitted an assessee's appeal only challenging imposition of penalty under Section 11AC of the Act. This even though the order impugned before it also dealt with an issue of valuation, for the reason that the appellant made a statement that the valuation of the goods which was determined by the Tribunal stands accepted by the assessee and he does not seek to challenge it. On the same basis, it is submitted that the present appeal ought to be considered for admission on the issue of limitation which alone has been urged after accepting the valuation. 10. So far as the decision to admit the appeal in Century Enka (supra) is concerned, we are of the view that it would have no application to the present facts as the challenge was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is accepted, would be appealable before us under Section35G of the Act. Therefore, the decision in the case of Century Enka Ltd. (supra) would not apply to the facts of the present case. 11. It was then submitted that in view of the decision of the Larger Bench of the Supreme Court in UOI Vs. Dharmendra Textile Processors & Ors. 2008 (13) SCC 369 so far as penalty under Section 11C of the Act is concerned, there is no discretion available with the Authorities under the Act. This as it is mandatory when the demand is confirmed. Therefore, the admission of appeal from the order of the Tribunal only on penalty under Section 11AC of the Act, without any challenge to the confirmation of the demand on issue of valuation and / or rate of duty is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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