Case Note & Summary
The Commissioner of Central Excise & Service Tax, Kolhapur filed an appeal under Section 35 of the Central Excise Act, 1944 before the Bombay High Court against an order of the Appellate Tribunal. The respondent, Bahar Agro Chem & Feeds Pvt. Ltd., raised a preliminary objection regarding the maintainability of the appeal, contending that the impugned order pertained to the determination of 'rate of duty' and 'value of goods', which are excluded from the High Court's appellate jurisdiction under Section 35G of the Act. The High Court examined Section 35G(1), which explicitly states that no appeal lies to the High Court from an order of the Appellate Tribunal relating 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. The Court noted that the respondents had already filed a Special Leave Petition before the Supreme Court on the same issues, which had been admitted. The appellant argued that other issues, such as limitation, were also involved, but the Court found that the clear bar under Section 35G applied. Consequently, the High Court accepted the preliminary objection and held that the appeal was not maintainable. The appeal was disposed of as not maintainable, with liberty to the appellant to approach the appropriate appellate forum. No order as to costs was made.
Headnote
A) Central Excise - Appeal to High Court - Maintainability - Section 35G of Central Excise Act, 1944 - The appeal under Section 35G is not maintainable before the High Court if the order of the Appellate Tribunal relates to determination of rate of duty of excise or value of goods for purposes of assessment. The High Court held that the plain reading of Section 35G(1) excludes such orders from its appellate jurisdiction. The appeal was disposed of as not maintainable, with liberty to approach the appropriate forum. (Paras 4-7)
Issue of Consideration
Whether an appeal under Section 35G of the Central Excise Act, 1944 is maintainable before the High Court when the impugned order of the Appellate Tribunal relates to the determination of rate of duty of excise or value of goods for purposes of assessment.
Final Decision
The appeal is disposed of as not maintainable, with liberty to the appellants to approach the available appellate forum against the impugned order/issue. No order as to costs.
Law Points
- Appeal to High Court under Section 35G of Central Excise Act
- 1944 is barred when the order relates to determination of rate of duty or value of goods
- maintainability
- preliminary objection
Case Details
2017 LawText (BOM) (07) 98
Central Excise Appeal No. 135 of 2015
Anoop V. Mohta, Smt. Anuja Prabhudessai
Mr. Pradeep Jetly a/w. Mr. Jitendra Mishra for the Appellant, Mr. Yogesh Patki a/w. Mr. A.S. Ramesan i/b. A.S. Ramesan Advocates for the Respondent/State
The Commissioner of Central Excise & Service Tax, Kolhapur
Bahar Agro Chem & Feeds Pvt. Ltd.
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Nature of Litigation
Appeal under Section 35 of the Central Excise Act, 1944 against an order of the Appellate Tribunal relating to rate of duty and value of goods.
Remedy Sought
The appellant (Commissioner of Central Excise) sought to challenge the order of the Appellate Tribunal before the High Court.
Filing Reason
The appellant was aggrieved by the order of the Appellate Tribunal and filed an appeal under Section 35 of the Central Excise Act, 1944.
Previous Decisions
The respondents had already preferred a Special Leave Petition before the Supreme Court against the same order/issues, which was admitted.
Issues
Whether the appeal under Section 35G of the Central Excise Act, 1944 is maintainable before the High Court when the impugned order relates to determination of rate of duty or value of goods.
Submissions/Arguments
The respondent raised a preliminary objection that the appeal is not maintainable as the impugned order deals with 'Rate of Duty' and 'Value of Goods', which are excluded from the High Court's jurisdiction under Section 35G.
The appellant submitted that there are other issues involved, including an extension of limitation period.
Ratio Decidendi
Under Section 35G(1) of the Central Excise Act, 1944, no appeal lies to the High Court from an order of the Appellate Tribunal relating 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. Such orders are appealable only to the Supreme Court.
Judgment Excerpts
The plain reading of Section 35(G) makes the position very clear.
It is clear from the provisions itself that no appeal lies to the High Court from the Order passed by the Appellate Tribunal being the order relating among other things, to the determination of any question having a relation to the rate of duty of excise and/or to the value of goods for the purposes of amendment.
Therefore, by keeping all points open, the present appeal is disposed of as not maintainable, with liberty to the appellants to approach the available appellate forum against the impugned order/issue, if so instructed.
Procedural History
The Commissioner of Central Excise & Service Tax, Kolhapur filed an appeal under Section 35 of the Central Excise Act, 1944 before the Bombay High Court against an order of the Appellate Tribunal. The respondent raised a preliminary objection regarding maintainability. The High Court heard the matter and disposed of the appeal as not maintainable.
Acts & Sections
- Central Excise Act, 1944: Section 35, Section 35G
