9911796707
TMI Blog2024 (1) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... eal filed by the Appellant Department under Section 35G of the Central Excise Act, 1944 (hereinafter to be referred as the Act) is not maintainable before this Court and this Court has no jurisdiction to entertain the same, inasmuch as, one of the question in the instant case relates to determination of value of the excisable goods for the purpose of assessment which falls within the exclusive jurisdiction of the Hon'ble Supreme Court of India under Section 35L of the Central Excise Act, 1944. Learned counsel contended that an appeal against an order passed by Ld. 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 Supreme Court under Section 35L of the Act. 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 of the Act. 4. Learned counsel further draws attention towards the Show Cause Notice (SCN) and submits that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of valuation of excisable goods and/or rate of duty of excisable goods. He further submits that neither the order of the CESTAT, Kolkata is related to valuation of goods/rate of duty nor the questions raised in appeal are related to them. Hence, there is no applicability of Section 35L (2) on this issue. He lastly submits that both these appeals are maintainable under Section 35-G and Section 35-L(b) is not applicable. 6. Having heard learned counsel for the parties and after going through the records of the case it transpires that the Assessee has raised an objection to the effect that the appeals filed by the Appellant Department under Section 35G of the Central Excise Act, 1944 is not maintainable before the High Court and this Court has no jurisdiction to entertain these appeals, inasmuch as, one of the question in the instant case relates to determination of value of the excisable goods for the purpose of assessment which falls within the exclusive jurisdiction of the Hon'ble Supreme Court under Section 35L of the Central Excise Act, 1944. It has been submitted by the Assessee that an appeal against an order passed by learned Tribunal under Section 35C of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses of assessment. [(2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment. (Emphasis Added) As per sub-Section (2) of Section 35L, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment. The provision of Section 35G of the Central Excise Act, 1944 is set out below:- 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 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. XXXX (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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nals. Para 2. Annexure I of the said Circular deals with provisions for filing of (a) Civil appeals/SLP against the High Court order before the Supreme Court and (b) Civil Appeal against any Tribunal order. It was mentioned therein that Civil Appeal against the Tribunal order is required to be filed in the Supreme Court in cases relating, among other things, to the determination of any question having a relation to the rate of duty or the value of goods for the purposes of assessment as statutorily prescribed. Para 3. It has come to the notice of the Board that field formations have filed appeals in the jurisdictional High Courts in matters relating either to determination of rate of duty or value of the goods which ought to have been filed in the Supreme Court. Such appeals get dismissed by the High Courts on the ground of jurisdiction alone, invariably after pending for a long time. Civil Appeals filed in the Supreme Court in such 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Home Developers, Jamshedpur and that the said company had purchased Steel Rods (TMT Bars) from the Noticee for his construction company. He also provided details of payments made through cheques. Sri Hemant Agarwal in the said letter categorically stated that they have made payments by cheques only and there is no payment in cash to the Noticee. The Noticee submitted that a perusal of the statement of Sri Hemant Agarwal it is evident that the allegation of undervaluation and flow back of funds are perverse and contrary to the materials on record. The allegation that the Noticee has purportedly received Rs. 19,75,568/- over and Rs. 70,43,349/- does not stand proved. 124 - I find that the noticee again submitted reply in respect of only one case ignoring and isolating the other entries mentioned in the said writing pad...................... Investigation proved its case of flow back of fund of sale 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 clandestinel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application of certain provisions of Act 1 of 1944. - The provisions of the following sections of the [Central Excise Act, 1944], as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise :- [sub-section (2A) of section 5A, sub-section(2) of section 9A], 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, [12E, 14, [15, 15A, 15B] 31, 32, 32A to 32P, 33A, 35EE, 34A, 35F]], [35FF,] to 35O (both inclusive), 35Q, [35R,] 36, 36A, 36B, 37A, 37B, 37C, 37D [38A] and 40. (Emphasis Added) Even the provisions under Section 130 and Section 130E of the Customs Act, 1962 deals with appeal to High Court and Supreme Court respectively which are pari materia to Section 35G and Section 35L of the Central Excise Act, 1944, hence, the ratio of the judgment rendered by different 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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. The relevant portion of the said judgment is set out below- 9. Before we examine other judgments, it is important to examine the language of Section 35G in the bracketed portion which relates to matters in which appeal is to be filed before the Supreme Court. Section 35L of the F. Act is specific. The words/expression used is "determination of any question in relation to rate of duty or value for the purpose of assessment". The word 'any' and expression 'in relation to' gives appropriately wide and broad expanse to the appellate jurisdiction 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority would stand merged in the order of the appellate authority. In other words, while determining whether an appeal is maintainable under Section 35G or not, it is necessary to see whether the order passed in appeal by the Appellate Tribunal and not the order passed by the adjudicating authority determines any question having any relation to the rate of duty of excise or to the value of goods for purposes of assessment. We must, therefore, ascertain what the appellate authority decided in the impugned order." (Emphasis added) 14. At this stage, it is also profitable to refer the case of CST Vs. Scott Wilson Kirkpatrick (I) Pvt. Ltd., reported in 2011 (23) STR 321 (Kar.), wherein the Karnataka High Court has held that the word "for the purpose 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendering activity or not, so as to attract levy of service tax? (h) Whether a particular service falls within which heading, sub-heading of Section 65(105) of the Service Act, 1994 which defines "taxable service. 37. From the aforesaid discussion, it is clear that an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of service taxes or to the value of services for the purposes of assessment lies to the Supreme Court under Section 35L(b) of the Act and not to the High Court under Section 35(G)." 15. As indicated herein above, there are two views, inasmuch as, in the case of Pr. Commissioner Vs. Raja Dying reported in 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties rendering those services throughout the country. In a country governed by Parliamentary legislation because of the territorial bifurcation in forming states and because of the divergent opinion which is possible, the service tax payable would vary from place to place. In order to bring uniformity in the levy of service tax throughout the country and consequently to see that the country's finance is not affected, the Parliament has vested the jurisdiction to decide the disputes with the Apex Court. Therefore, we see a policy underlining this bifurcation of the jurisdiction between the Apex Court and the High Courts. All other matters other 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void conflicting findings. A view to the contrary would lead to the possibility of an appeal against the order of the Tribunal being maintainable in certain respects before the High Court and in other respects before the Supreme Court. This could lead to considerable confusion and complication. For instance, it may well be necessary in a given case for the Supreme Court to refer to, analyse and adjudicate upon the facts in relation to an order relating 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. It may equally be necessary for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
