2018 (9) TMI 26 - HC - Central Excise

Court Orders Revenue to File Appeal Under Section 35-L, Emphasizing Proper Challenge Based on Circular

The court directed the Revenue to withdraw the appeal and file under Section 35-L before the Apex Court, emphasizing the need for a proper challenge based ... Interpretation of Statute - Board's circular No.6/92 dated 29.5.1992 - SSI exemption - Clubbing of Turnover - no dummy units - maintainability of appeal - Held that:- The real issue in this appeal is regarding interpretation of Board's circular No.6/92 dated 29.5.1992 and the appeal against the impugned order passed by the Appellate Tribunal would lie before the Apex Court - appeal disposed off with liberty to challenge the same by filing an appeal under Section 35-L of Central Excise Act, 1944 before the Apex Court - present appeal not maintainable. Issues involved:Interpretation of Board's circular No.6/92 dated 29.5.1992; Maintainability of appeal under Section 35-G of the Central Excise Act, 1944; Jurisdiction of the High Court under Section 35-L of the Central Excise Act, 1944.Interpretation of Board's circular No.6/92 dated 29.5.1992:The appeal was filed by the Revenue against the Appellate Tribunal's order, which concluded that the circular does not debar clubbing of turnover. The Tribunal found no evidence that the SSI units were dummy units and allowed the appeal. The respondent's counsel argued that the issue pertains to the interpretation of the circular and cited a previous order to support the appeal's disposal. The court considered various precedents and directed the department to withdraw the appeal and file under Section 35-L before the Apex Court, emphasizing the need for a proper challenge based on the circular's interpretation.Maintainability of appeal under Section 35-G of the Central Excise Act, 1944:The respondent's counsel raised a preliminary objection on the appeal's maintainability, contending that it should be filed under Section 35-L due to the nature of the controversy. Citing similar cases and decisions, including a Supreme Court ruling, the counsel argued for the appeal to be directed to the Apex Court under Section 35-L. The court, after considering the facts and relevant legal precedents, permitted the department to withdraw the appeal and instructed them to challenge the order under Section 35-L before the Apex Court, ensuring proper documentation for the process.Jurisdiction of the High Court under Section 35-L of the Central Excise Act, 1944:The court acknowledged the real issue in the appeal concerning the interpretation of the circular and the appropriate jurisdiction for the appeal. Considering the legal position established by the Apex Court in a previous case, the court agreed with the respondent's objection and disposed of the appeal, granting liberty to challenge the decision by filing an appeal under Section 35-L before the Apex Court. This decision was based on the understanding that the appeal against the Appellate Tribunal's order should be directed to the Apex Court for resolution.