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TMI Blog2019 (5) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... llant(s) : Mr. Vikas Balia and Mr. Jagat Tatia For the Respondent(s) : Mr. Rajvendra Sarswat ORDER 11/04/2019 The present bunch of appeals under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944') arise out of a common judgment and order dated 11.5.2018 passed by the Central Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'the CESTAT or the tribunal'). All these appeals belonging to one family group can be broadly furcated in three categories; duly shown in Table 'A', 'B' and 'C'. Table-A S. No. DB EXCIA No. CESTAT Case No. Case Title 1 101/2018 E/50049/2018 Shree Bherav Engineers vs Commissioner of Central Excise & Service Tax, Udaipur (Raj.) 2 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. While item No. 6 to 9 mentioned in the above Table-A emanate from show cause Notice C.No.V (82) Adj./UDR/132/2015/174-184 dated 7.5.2015, pursuant whereof an order in original dated 29.8.2007 came to be passed confirming a demand of excise duty amounting to Rs. 58,47,246/- against Shree Bherav Diamond Tolls Pvt. Ltd and its related manufacturing firms namely (i) Shree Bherav Engineers (ii) Shree Bherav Tools Corporation; and (iii) Shree Bherav Amla Food Processors. Table-B S. No. DB EXCIA No. CESTAT Case No. Case Title 1 115/2018 E/50053/2018 Shree Bherav Tools Industries vs Commissioner of Central Excise & Service Tax, Udaipur (Raj.) 2 111/2018 E/50056/2018 M/s Swastik Enterprises vs Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lve both duty and penalty under Rule 25 of the Rules of 2002; it has been reflected in Table-A and Table-B both. As a matter of fact there are 15 appeals in all. It is pertinent that while passing the common order in original the adjudicating officer recorded as under : "....... Shri Mahendra Bohra Director of M/s. SBDTPL has floated the manufacturing as well as trading firms, over the period of time, in the name of his family members in order to circumvent the legal provisions and to evade the payment of central excise duty on the goods manufactured and removed clandestinely under the invoices of the floated firms. It has also been established that the family members viz. his wife, sons and daughter in whose name, the firms were floated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trading units were owned by related persons as defined under Section 4 of Central Excise Act, 1944. These acts of M/s.SBDTPL resulted in contravention of the provisions of Rule 4,6,8,9,10,11 and 12 of the Central Excise Rules, 2002 and Rule 9 and 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000 and thereby they have evaded the payment of Central Excise duty amounting to Rs. 3,49,75,706/- (Rs. 2,91,28,460/- +Rs. 58,47,246/-) during the period 2009-10 (Jan 2010 onwards) to 2013-14 and 2014-15 respectively which is determined under Section 11A(10) of the Central Excise Act 1944 and same is liable to be recovered from them". The contentious issues posed by the appellants are as to whether the Rules 9 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of goods, the position of law was not clear. Hence, we embark upon to decide the question of maintainability of these appeals. Section 35G(1) of the Act of 1944 provides an appeal to the High Court against an order of the tribunal, however, with an exception to the effect that an appeal involving question of valuation of goods or rate of duty shall lie before Hon'ble the Supreme Court under Section 35L of the Act of 1944. It will not out of place to reproduce Section 35G(1) of the Act of 1944, which reads thus: "Section 35G. 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 thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use of the expression,"......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 the purpose of assessment....." A perusal of the orders impugned reveals that the penalty in question has been levied under Rule 25/26 of the Rules of 2002 on the allegation that the valuation of the goods has not been properly made and/or value of clearances of all the manufacturing units need to be clubbed together. Hence, the appeals (mentioned in Table-B and Table-C above) are also required to be heard by Hon'ble Supreme Court. In any case, it will be in the fitness of the things that all the appeals involving common facts and question of law are heard and decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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