2017 (7) TMI 560 - HC - Central Excise

Court lacks jurisdiction over appeal under Section 35G; directs High Court approach. Stay extended for appeal filing.

Hero Motocorp Versus Commissioner of Customs & Central Excise, Meerut & Another

The Court determined that it lacked territorial jurisdiction to entertain the appeal filed under Section 35G of the Central Excise Act, directing the ... Jurisdiction of Court to entertain the appeal - pre-deposit - Held that: - by Ext.P4 letter of adjournment, the petitioner had indicated that he would not be in a position to be represented in the personal hearing on 22.02.2017, and an opportunity was sought for a personal hearing in the month of March 2017. Ext.P5 order passed by the respondent is without reference to the said request for adjournment made by the petitioner. At any rate, I am of the view that, no prejudice will be caused, if a fresh order of adjudication is passed after hearing the petitioner, considering that there is no period of limitation that will be breached, if a fresh order is passed after hearing the petitioner - appeal dismissed. Issues:Jurisdiction of the Court to entertain the appeal, Appellant's concession on territorial jurisdiction, Maintainability of appeal before the Supreme Court, Request for withdrawal of appeal and filing in High Court of Uttarakhand, Extension of stay order, Appellant's payment of disputed duty, Question of limitation.Jurisdiction of the Court to entertain the appeal:The appeal by the Assessee under Section 35G of the Central Excise Act, 1944 was directed against an order passed by the Customs, Excise & Service Tax Appellate Tribunal, Delhi. The Court framed three questions of law, including the issue of jurisdiction. The Respondent raised objections regarding the Court's jurisdiction to entertain the appeal. The Senior Counsel for the Appellant conceded that based on a previous decision, the Court did not have territorial jurisdiction to hear the appeal, as the Appellant's unit was in Haridwar, Uttarakhand. It was noted that the Appellant needed to approach the High Court of Uttarakhand for the statutory appeal.Maintainability of appeal before the Supreme Court:The Respondent contended that an appeal against the impugned order of the CESTAT was maintainable only before the Supreme Court under Section 35L of the CE Act. However, the Appellant argued that the present appeal concerned the payment of specific duties and not issues like duty rate, valuation, or classification. The Appellant sought to withdraw the appeal with liberty to file a proper appeal before the High Court of Uttarakhand.Request for withdrawal of appeal and filing in High Court of Uttarakhand:Both parties agreed to the withdrawal of the appeal by the Appellant with liberty to approach the High Court of Uttarakhand with a properly constituted appeal. The Respondent did not contest the request, and the Court permitted the withdrawal of the appeal under the mentioned terms.Extension of stay order and Appellant's payment of disputed duty:The Appellant requested an extension of the stay order granted by the Court to enable them to file an appeal in the High Court of Uttarakhand. The Appellant had already paid the disputed duty with interest, and the stay was only regarding the penalty. The Respondent opposed the extension, citing the Court's lack of territorial jurisdiction. Despite the opposition, the Court extended the stay for two weeks to facilitate the filing of an appeal in the High Court of Uttarakhand.Question of limitation:The Court directed the Appellant to address the question of limitation before the High Court of Uttarakhand in accordance with the law. The appeal was ultimately dismissed as withdrawn with liberty granted to the Appellant as requested. The parties were provided with the necessary documents under the Court Master's signature.