High Court proceeds with appeal on taxability/excisability despite referral to Larger Bench. Appeal hearing set for Dec 5, 2018.

The High Court decided to proceed with the appeal concerning taxability and excisability of goods, despite the referral of questions to a Larger Bench. The Court found that the issues referred were not pertinent to cases challenging Tribunal orders issued after the relevant amendment to Section 35L in 2014. Therefore, the Court scheduled the appeal hearing for December 5, 2018, distinguishing cases where the Tribunal's order postdated the amendment.

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Issues:
1. Referral of questions to Larger Bench regarding taxability and excisability of goods.
2. Clarification on the applicability of Section 35L(2) of the Act.
3. Determination of whether the amendment to Section 35L of the Act is clarificatory or prospective.

Analysis:
The High Court, in this appeal, noted that a Division Bench had adjourned the hearing to await the decision of the Larger Bench in a specific case concerning the taxability and excisability of goods. The Division Bench had referred two questions to the Larger Bench for consideration. The first question pertained to whether the issue of taxability or excisability of goods is an issue of rate of duty appealable only to the Supreme Court under Section 35L(2) of the Act, even for appeals from orders passed before the insertion of Subsection (2) on 6th August, 2014. The second question related to whether the amendment to Section 35L of the Act in 2014 was clarificatory or prospective in nature.

The issues before the Larger Bench specifically concerned appeals from Tribunal orders predating the insertion of Subsection (2) in Section 35L on 6th August, 2014. The High Court determined that it was unnecessary to await the outcome of the reference by the Larger Bench in cases where the Tribunal's order being challenged was issued after 6th August, 2018, as the questions referred were not relevant in such instances. Therefore, the High Court scheduled the hearing of the appeal for 5th December, 2018, indicating that the matters pending before the Larger Bench were distinct from those where the Tribunal's order postdated the relevant amendment to Section 35L of the Act.

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