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2019 DIGILAW 76 (ORI)

Commissioner, Central Excise v. Birla Tyres

2019-01-30

K.R.MOHAPATRA, K.S.JHAVERI

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JUDGMENT : K.S. JHAVERI, J. 1. Mr. R. Raghavan, advocate enters appearance for respondent and files memo of appearance in Court today, which is taken on record. 2. Heard Mr. T.K. Satapathy, learned Senior Standing Counsel (Income Tax) for the appellant and learned counsel for the respondent. 3. By way of this appeal, the appellant has challenged order dated 09.03.2005, passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, in A.No.E/3812 to 3814/04-B, whereby the Tribunal had passed the following order : "2. The learned counsel has contended that since the tariff rate is NIL under the said Chapter Heading, such a direction could not be issued by the Commissioner (Appeals) and deserves to be set aside. On the other hand, the learned SDR, has contended that if the tariff rate is NIL, the appellants will automatically get a relief from the lower authorities and as such no modification is needed in the order. 3. We have heard both sides and gone through the record. The perusal of the impugned order shows that the learned Commissioner (Appeals) has upheld the classification of the goods in question (Rubberized Rubber Cord Fabrics) under Chapter Heading 59.06 of the CETA, but he has lost sight of the fact that the tariff rate under the said Chapter Heading is NIL and as such no direction could be legally issued by him to the lower authority to recomputed the demand with penalty. This direction is virtually redundant and deserves to be quashed. We accordingly, set aside the above said direction and modify the impugned order of the Commissioner (Appeals) to that extent. The appeals of the appellants accordingly stand disposed of." 4. Learned counsel for the respondent raised a preliminary objection that this Court has wrongly entertained the appeal filed under section 35G of the Central Excise Act, 1944 (for short 'the Act'). The appellant may approach Hon'ble Supreme Court under Section 35L of the Act, if so advised. 5. Section 35G as well as Section 35L of the Act are reproduced hereunder: "Section [35G. Appeal to High Court. The appellant may approach Hon'ble Supreme Court under Section 35L of the Act, if so advised. 5. Section 35G as well as Section 35L of the Act are reproduced hereunder: "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. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-Section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-Section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this Section. Section 35L. Appeal to the Supreme Court - (1) An appeal shall lie to the Supreme Court from-[(a) any judgment of the High Court delivered - (i) in an appeal made under Section 35G; or (ii) on a reference made under Section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under Section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or] (b) any order passed [before the establishment of the National Tax Tribunal] by the Appellate Tribunal 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. 6. 6. He contended that when there is a NIL tariff rate there is no question of remanding the matter back to the assessing officer by the appellate authority. Therefore, the Tribunal has set aside the order and confirmed the order of the assessing officer. If at all the order of the tribunal is required to be set aside, it can be entertained and done by the Hon'ble Supreme Court in view of the fact that whether there is a NIL tariff rate or 15%, it will be only a question of rate of tariff. In that view of the matter provisions under 35 L of the Act is attracted. 7. We accept that contention and in view of the recent decisions passed by the High Court of Judicature for Rajasthan Bench at Jaipur, in Commissioner of Central Excise Service Tax, Alwar v. M/s. Fun Foods Pvt. Ltd, D.B. Central/Excise Appeal No.53/2017, dated 11.04.2018 as well as Commissioner of Central Excise Commissioner ate, Udaipur v. Kota Club Ltd Kota, D.B. Central/Excise Appeal No.40/2016, dated 17.01.2018, it will be open for the appellant to challenge the same before the Hon'ble Supreme Court, if so advised. The said orders dated 11.04.2018 and 17.01.2018 are reproduced hereunder: Order dated 11.04.2018 "1. In view of the judgment of Delhi High Court in the case of Commissioner of Service Tax v. Ernest & Young Private Limited (supra) wherein it has been held as under:- "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. 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) STR 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 will for the appellant to say that it is only raising an issue pertaining to limitation but the provision does not speak about the issues raised in the appeal, on the other hand, it speaks about the nature of the order passed by the Tribunal. If the order passed by the Tribunal which is impugned before the High Court relates to the determination of value of the taxable service, then an appeal from such an order would not lie to the High Court. 4. However, we feel that although those decisions do support the contention of the learned counsel for the respondent, the approach that we have taken is a more direct. We reiterate, it is not the content of the appeal that is determinative of whether the appeal would be maintainable before the High Court or not but rather the nature of the order which is impugned in the appeal which determines the issue." 2. In view of the above, the appeal is not entertained. It will be open for the appellant to approach the Hon'ble Supreme Court. The period from the date of filing the appeal till today will be considered while considering the matter on merits. 3. The appeal stands disposed of. Order dated 17.01.2018 "The appeal lies before the Supreme Court. In view of the above, the appeal is not entertained. It will be open for the appellant to approach the Hon'ble Supreme Court. The period from the date of filing the appeal till today will be considered while considering the matter on merits. 3. The appeal stands disposed of. Order dated 17.01.2018 "The appeal lies before the Supreme Court. In that view of the matter, the appeal stands disposed of. It will be open for the appellant to approach Hon'ble Supreme Court. The period taken from 1.8.2016 till today will be considered on the application filed under section 14 of the Limitation Act. In view of the above, the appeal stands disposed of." 8. The appeal stands disposed of accordingly. 9. The period from the date of filing the appeal i.e. 29.11.2006 till today may be taken into consideration while considering the petition for condonation of delay, if any. 10. Issue urgent certified copy of this order as per rules.