TaxTMI 
TaxTMI 
2016 (2) TMI 16
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....thereof', which are excisable commodities, possessing valid Central Excise Registration. The appellant manufactured and cleared their final products, through dual methods, i.e., directly to the customers at factory gate sale or (b) to depot sales, on stock transfer basis, to their depots, situated in various parts of the country. 2.1. While removing the goods to their depots, the appellant adopted a list price, for payment of duty, at the time of removal from the factory to their depots. The appellant, after selling the goods at depots, calculated the differential duty, based on the value of the goods sold in the respective depots and paid the differential duty. 2.2. The appellant, while calculating the differential duty, based on the depot prices, adjusted the excess payment against the short payment made by them at the time of clearance from their factory and paid the differential duty, if any. 2.3. The claim of the Revenue was that the appellant ought to have discharged the duty liability on the goods sold from the depots / branches, in accordance with the provisions of Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, r....
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.... application wherein it was specifically pointed out that one of issue arises in the appeal relate to valuation and in such a case, second proviso clause (i) of Sec. 35-B of the Central Excise Act is not attracted?" 2.8. The appellant filed an Application for Rectification of Mistake (ROM) and by the order, dated 07.05.2015, the said ROM got dismissed. Aggrieved over the same, the Assessee has filed C.M.A.No.2230 of 2015, raising the very same substantial questions of law, as stated supra, in para 2.7. 3. Out of the two substantial questions of law raised, the first substantial question of law would arise for consideration in C.M.A.No.2586 of 2015 and the second substantial question of law would arise for consideration in C.M.A.No.2230 of 2015. 3.1. As the substantial questions of law involved in both these cases are inter-linked, common judgment is pronounced. 4. The main contention of the appellant / assessee in C.M.A.No.2586 of 2015 is that, the Tribunal has no jurisdiction to reject the appeal on the ground of monetary limit and that monetary limit is not applicable in cases where the issue involved relates to rate of duty or valuation of goods. 4.1. The answer b....
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....rposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees" 4.3. A perusal of Section 35B of the Act would go to show that sub-section (i) specifies orders against which appeal lies to the appellate Tribunal and the proviso to sub-section (i) stipulates three clauses of cases, which have to be decided by the Central Government, in Revision, under Section 35EE of the Act. Under the second proviso to Section 35B of the Act, the appellate Tribunal is vested with discretion to refuse to admit an appeal, in respect of the order referred to in clause (b) or clause (c) or clause (d), where, (i) in any disputed case, other than a case, where the determination of any question having a relation to the rate of duty of the excise or to the value of goods for the purpose of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved or (ii) the amount of fine or penalty determined by such order does not exceed two lakhs rupees. 4.4. The CESTAT may, at its discreti....
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....fore this Court. The residuary contention of the learned counsel for the respondents is that, in case, this Court upholding the jurisdiction, the matters have to be remanded back to the Tribunal, in order to decide the maintainability of the appeals before the Tribunal itself. 5.1. At this juncture, it would be appropriate to quote the provisions of Section 35G of the Act, which reads as under:- "35G.Section 35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, 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), if the High Court is satisfied that the case involves a substantial question of law......" 5.2. Therefore, the issue to be decided is whether the issue raised before this Court is with reference to valuation of the goods, and therefore, it is not maintainable or the issue is pertaining to issues which are not barred under Section 35G of the Act. 5.3. So far as the appeals before this Court are concer....
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....ourt. 8. In the Application seeking ROM, the appellant has very clearly stated that, as per the second proviso to Section 35B (i) of the Act, the appeal cannot be dismissed, even if one of the issues involved in the appeal is determination of rate of duty or value of the goods. This is so, according to the second proviso to Section 35B of the Act. In other words, it is apparent on the face of the provision of Section 35B of the Act that the order passed suffers from the mistake apparent on the face of the record. 9. The Tribunal has no power to review its own order. However, the Tribunal can pass order for rectifying a mistake apparent from the records within six months from the passing of the order, as contemplated under Section 35C (2) of of the Act. As per the decision reported in the case of Honda Siel Power Products Ltd., v. CIT (9 STR 117 (SC), the purpose of Rectification of Mistake is based upon the fundamental principle that no party appearing before the Tribunal should suffer on account of any mistake committed by the Tribunal and that when prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is duty of the Tribunal ....