Case Note & Summary
The Commissioner of Central Excise & Customs filed two appeals under Section 35-G of the Central Excise Act, 1944 against orders of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) dated 4.12.2007 and 4.3.2008. The CESTAT had set aside demands of Rs.17,37,276.82 and Rs.2,00,000 penalty in one case and similar amounts in the other, originally confirmed by the Assistant Commissioner. The respondent assessee, M/s Midas Care Pharma Pvt. Ltd., through counsel Shri S.M. Godsay, raised a preliminary objection that the appeals were not maintainable because no question of law arose from the CESTAT orders. The Revenue, represented by Shri D.S. Ladda, argued that the appeals were maintainable. The High Court, comprising Justices Ravindra V. Ghuge and Sunil K. Kotwal, examined Section 35-G of the Central Excise Act, which permits an appeal to the High Court only if the CESTAT order involves a question of law. The court noted that the CESTAT had merely set aside the demand on factual grounds, and no legal question was framed or arose. Consequently, the court held that it lacked jurisdiction to entertain the appeals and dismissed them as not maintainable. The judgment was delivered on 23rd November 2017.
Headnote
A) Central Excise - Jurisdiction - Section 35-G of Central Excise Act, 1944 - Maintainability of Appeal - The Revenue challenged CESTAT orders setting aside demand and penalty - The respondent assessee contended that the appeals were not maintainable as no question of law arose - The High Court held that under Section 35-G, an appeal lies only if the CESTAT order involves a question of law - Since the CESTAT had merely set aside the demand on facts, no question of law arose - The appeals were dismissed as not maintainable (Paras 1-6).
Issue of Consideration
Whether the High Court has jurisdiction to entertain appeals under Section 35-G of the Central Excise Act, 1944 against orders of CESTAT that do not involve any question of law.
Final Decision
Both appeals are dismissed as not maintainable. No order as to costs.
Law Points
- Jurisdiction of High Court under Section 35-G of Central Excise Act
- 1944
- Maintainability of appeal
- Question of law
- Final order
Case Details
2017 LawText (BOM) (11) 59
First Appeal No.2860 of 2008 with First Appeal No.3869 of 2008
Ravindra V. Ghuge, Sunil K. Kotwal
Shri D.S. Ladda for appellant, Shri S.M. Godsay for respondent
Commissioner of Central Excise & Customs, Town Centre, N-5, CIDCO, Aurangabad
M/s Midas Care Pharma Pvt. Ltd, B-16, M.I.D.C. Area, Waluj, Aurangabad
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Nature of Litigation
Appeals under Section 35-G of Central Excise Act, 1944 against CESTAT orders setting aside demand and penalty.
Remedy Sought
Revenue sought to set aside CESTAT orders and confirm the original demand and penalty.
Filing Reason
Revenue challenged CESTAT orders that set aside the demand and penalty imposed by the Assistant Commissioner.
Previous Decisions
Assistant Commissioner confirmed demand and penalty; CESTAT set aside those orders.
Issues
Whether the High Court has jurisdiction to entertain appeals under Section 35-G of the Central Excise Act, 1944 against CESTAT orders that do not involve any question of law.
Submissions/Arguments
Respondent assessee argued that appeals are not maintainable as no question of law arises from CESTAT orders.
Revenue argued that appeals are maintainable.
Ratio Decidendi
Under Section 35-G of the Central Excise Act, 1944, an appeal to the High Court lies only if the CESTAT order involves a question of law. Since the CESTAT orders in question merely set aside the demand on facts and no question of law arose, the High Court lacks jurisdiction to entertain the appeals.
Judgment Excerpts
In both these appeals, the appellant – Central Excise & Customs Department, (hereinafter referred to as the Revenue Department), seeks to challenge the order dated 4.12.2007, and 4.3.2008, passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), West Zone, Bench at Mumbai in two cases.
Learned counsel for the respondent assessee is aggrieved by the lodging of these appeals in this Court, for the reason that, these appeals are not maintainable under Section 35-G of the Central Excise Act, 1944.
Procedural History
Assistant Commissioner confirmed demand and penalty; CESTAT set aside those orders; Revenue filed appeals under Section 35-G of Central Excise Act, 1944 in High Court; High Court dismissed appeals as not maintainable.
Acts & Sections
- Central Excise Act, 1944: 35-G
