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TMI Blog2024 (1) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... UWAHATI CARBON LTD. [ 2012 (11) TMI 885 - SUPREME COURT ] it has been held by the Hon ble Apex Court that against the decision of Tribunal regarding assessable value excluding freight, transportation and insurance charges, an appeal therefrom shall lie before Supreme Court. Further, in the case of COMMISSIONER OF SERVICE TAX VERSUS ERNST YOUNG PVT. LTD. AND OTHERS [ 2014 (2) TMI 1133 - DELHI HIGH COURT ], it is held by the Delhi High Court that where the Order-in-Original (Adjudication Order) is relating to several issues or questions and one of the issue or question relates to rate of tax or valuation, the Appeal would lie before the Supreme Court under Section 35L of the Central Excise Act, 1944 and not before the High Court under Section 35G. After going through the judgments including the Board s Circular on the issue of maintainability and the facts of the case wherein the SCN as well as OIO also perused; reference of which are made in the preceding paragraphs, it clearly transpires that one of the issues involved relates to determination of valuation of excisable goods and/or rate of duty of excisable goods, amongst other things, for the purpose of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel further draws attention towards the Show Cause Notice (SCN) and submits that in the SCN dated 24-09-2012, one of the issues relates to valuation of excisable goods. He further contended that the issue of valuation was also before the Ld. CESTAT which is evident from the impugned order dated 09.08.2019 (Tax Appeal 05 of 2020 in Annexure-3). Relying upon the aforesaid submissions, learned counsel for the Assessee submits that both these appeals are liable to be dismissed in limine. 5. In reply to the aforesaid objection, learned Sr. Standing Counsel for the appellant-Revenue submits that the Respondent-Assessee is raising premature and irrelevant objection in the matter, inasmuch as, they are placing the question of law under dispute as 'dispute of valuation for assessment'; whereas the revenue has raised the issues for non-admission of bona-fide evidence' by the CESTAT, Kolkata. The CESTAT Kolkata in Final Order No. 75994-75995/2019 dated 09.08.2019 has erroneously not taken consideration of computer printouts and held them inadmissible. Thus, the question of law raised by the department is not of valuation but of admissibility of evidence which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by the Assessee that an appeal against an order passed by learned Tribunal under Section 35C of the Central Excise Act, 1944 where one of the issues involved relates to determination of valuation of excisable goods and/or rate of duty of excisable goods, amongst other things, for the purpose of assessment, the appeal would lie before the Hon ble Apex Court under Section 35L. The jurisdiction of the High Court in such matters are specifically excluded under Section 35G and it falls within the exclusive jurisdiction of the Supreme Court under Section 35L. 7. It appears from the memo of appeal that the Revenue has framed the following questions of law:- (i) Whether the Customs, Excise and Service Tax Appellate Tribunal, Kolkata was right in rejecting and not taking into consideration computer printouts and holding them as inadmissible as it failed to meet the conditions specified in Section 36B of the Central Excise Act, 1944 ? (ii) Whether the decision of the Customs, Excise and Service Tax Appellate Tribunal, Kolkata is contrary to facts and perverse? (iii) Whether the decision of the Customs, Excise and Service Tax Appellate Tribunal, Kolkata was erroneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XX (Emphasis Added) 9. The words amongst other things under Section 35G and Section 35L manifest the legislative intent that the order for the purpose of assessment if includes question of determination of rate duty or value of excisable goods intermingled with any other question, the appeal would lie to Supreme Court. The word for the purpose of assessment refers to the assessment orders (Adjudication Order). If in a case in the assessment order one of the question relates to rate of duty or valuation, the appeal would lie before the Supreme Court. The Delhi High Court in the case of CST Vs. Ernst Young Pvt. Ltd., reported in 2014 (34) STR 3 (Del.) and similarly the Karnataka High Court in the case of CST Vs. Scott Wilson Kirkpatrick (I) Pvt. Ltd., reported in 2011 (23) STR 321 (Kar.) interpreting the word for the purpose of assessment under Section 35G/Section 35L has held that the Order-in-Original (adjudication) shall be the basis for determination as to whether appeal will lie to High Court or Supreme Court. Further, in the case of Pr. Commissioner Vs. Raja Dying reported in 2017 (5) GSTL 231 (P H) it is held by the Punjab and Haryana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases have frequently been dismissed on the ground of limitation. It may also be noted that the time period for filing Civil Appeal is 60 days from the date of receipt of the Tribunal order in the Commissionerate. XXXX (Emphasis Added) 11. If we peruse the Show Cause Notice dated 24-09-2012; it would transpire that one of the issue relates to valuation of excisable goods. The relevant portion of the show cause notice in Tax Appeal No. 5 of 2020 (Annexure-1) is set out below- 5.0 CONTRAVENTION OF PROVISIONS OF CEA AND CER From the above, it appears that BFCL GFA (Noticee No.-1 Noticee No. 2] have contravened the following provisions of CEA and CER, with intent to evade payment of duties of Central Excise. X x x x X x x x (vi) Section -4 of CEA read with Rule 6 of the Valuation Rules, 2000 BFCL GFA have removed certain quantity of their finished products viz. M.S. Ingots, TMT Bars, Silico-manganese under the cover of valid Central Excise Invoices and on payment of Central Excise Duties shown in the said invoices. Reference's to removals of these goods were found in the seized documents recovered from the factory pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds by M/s. Trehan Home Developers by correlating the entries made in the writing pad vis-avis party wise ledger incheques as well as in cash. This also proves the case of undervaluation made by the noticees in respect of clearances of the said goods effected by them clandestinely to their buyers/ customers of the said goods. (Emphasis Added) The issue of valuation was also before the Ld. CESTAT which is evident from the Impugned Order dated 09-08-2019 in Tax Appeal No. 5 of 2020 (Annexure-3). The relevant portion of the impugned Order is set out below- 11. A Show Cause Notice dated 24-09-2012 was issued by Ld. Addl. Director General, DGCEI, Kolkata alleging that the BFCL has clandestinely removed/undervalued 42,851.569 MT of their final products i.e. M.S Ingots/TMT Bars/Miss Rolls/Mill Scale/end Cutting/Risers without payment of duty during the period 1st September 2007 to 15th October 2008. In the show cause notice it is further alleged against M/s GFA that it has resorted to clandestine removal/undervaluation of 9488.635 M.T. of final products i.e. Silico Manganese during the said period. Accordingly, M/s BFCL is required to show cause why Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts under the Customs Act, 1962 would apply to Central Excise Act, 1944 also. For brevity, the relevant portion of Section 130 and Section 130E of the Customs Act, 1962 are set out below:- Customs Act, 1962 Section 130. - 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 customs or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. X X X X Section 130E - Appeal to Supreme Court. An appeal shall lie to the Supreme Court from - [(a) any judgment of the High Court delivered - (i) in an appeal made under section 130; or (ii) on a reference made under section 130 by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 130A, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Supreme Court in respect of question relating to rate of tax or value for the purpose of assessment. Further, if the order relates to several issues or questions but when one of the questions raised relates to rate of tax or valuation in the order in the original, the appeal is maintainable before the Supreme Court and no appeal lies before the High Court under Section 35G of the CE Act . Referring to the expression other things in Section 35G of the CE Act in the case of Bharti Airtel Limited - 2013 (30) S.T.R. 451 (Del.), a Division Bench of this Court has stated : 3. On a plain reading of Section 35G of the Central Excise Act, 1944 it is clear that no appeal would lie to the High Court from an order passed by CESTAT if such an order relates to, among other things, the determination of any question having a relation to the rate of duty or to the valuation of the taxable service. It has nothing to do with the issues sought to be raised in the appeal but it has everything to do with the nature of the order passed by the CESTAT. It may be very well for the appellant to say that it is only raising an issue pertaining to limitation but the provision does not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of assessment means the Order passed in the course of assessment and all Orders passed in the course of assessment involving determination of any question having a relation to the rate of duty or the valuation of goods or services, cannot be subject matter of appeal before the High Court. The word among other things makes it clear that the issues of rate of duty or value of goods or services may be intermingled with other issue. The relevant portion of the said judgment is set out below- 12. It is argued as the wordings of the section stands, it is only in respect of the two types of cases the jurisdiction of the High Court is denuded. They are:- (1) Where the assessment relates to the determination of the rate of duty; (2) The question relates to the determination of the value of the Service. Any question relating to or in relation to these two aspects alone, the High Court has no jurisdiction and in respect of other things it has jurisdiction. 13. In order to appreciate this contention, we have to carefully see the wordings employed by the legislature. The relevant words are as under: - Not being an order relating, among other things, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 (5) GSTL 231 (P H), it is held by the Punjab Haryana High Court that it is the nature of Order of Tribunal and not scope of appeal that determines the maintainability of appeal under Section 35G of the Central Excise Act, 1944. The relevant portion of the said judgment is set out below- 14. Whether an appeal lies to the High Court under Section 35G or to the Supreme Court under Section 35L cannot possibly depend upon the nature or scope of the appeal that the party intends filing. A party may seek to challenge only that part of the order of the Tribunal which relates to questions other than those relating to the rate of duty of excise or the value of the goods for the purposes of assessment. Such an appeal would, absent any other questions, lie to the High Court. Once it is held that an appeal against the order of the Tribunal which deals with questions that fall within the ambit of Section 35L as well as other questions lies to the Supreme Court under Section 35L the mere fact that the party chooses to challenge only that part of the order that falls within the ambit of Section [35G] would make no difference. In other words, it cannot be said that the party that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than what is set out above, which relates to the individual service providers and all disputes based on assessment orders which have attained finality, such as the benefits to which they are entitled to. refunds, duty drawbacks, rebates, etc., which relate to a particular manufacturer falls within the jurisdiction of the High Courts. In other words all disputes emanating from the orders determining the rate of service tax and value of service, which has reached finality are to be determined by the High Court and not disputes arising prior to the stage of determining the rate of service tax and value of service. (Emphasis Added) Even, the Punjab Haryana High Court also in the case of Pr. Commissioner Vs. Raja Dying (supra) while explaining the reasons for bifurcation of jurisdiction between the Supreme Court and High Court, has held in the following lines- 11. The words among other things in Section 35G are of singular importance in determining the ambit of Section 35G. These words indicate that an appeal is maintainable under Section 35G to the High Court only if the order passed in appeal by the Tribunal is not one relating to the determination of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court in an appeal against the same order to consider, analyse and adjudicate upon the same facts but in relation to the other questions. Although theoretically, it would be possible to bring the matter to a conclusion with consistent findings the process would be considerably cumbersome and in many cases impractical. For instance, in a given case, a party may not challenge the order of the High Court. Against the same order in the appeal before the Supreme Court, it would be possible to come to different conclusions on the facts. The party, against whom the facts have been determined, would be faced with the findings of fact by the High Court. Both the judgments would have attained finality but with inconsistent findings. This could not have been the intention of the Legislature. 16. After going through the aforesaid judgments including the Board s Circular on the issue of maintainability and the facts of the case wherein we have perused the SCN as well as OIO; reference of which are made in the preceding paragraphs, it clearly transpires that one of the issues involved relates to determination of valuation of excisable goods and/or rate of duty of excisable goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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