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2017 (3) TMI 1284
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.... any reasoning and ignoring the submissions of the Department with regard to facts and evidences on record?" 3. Mr. Amrinder Singh, the learned counsel appearing on behalf of the respondents has raised a preliminary objection as to the maintainability of this appeal under Section 35 of the Act. He contends that the appeal is not maintainable as the order passed by the Appellate Tribunal relates among other things to the determination of questions having a relation to the rate of duty of excise and/or to the value of goods for the purposes of assessment. Mr. Sharan Sethi, learned senior standing counsel appearing on behalf of the appellant, on the other hand, contends that the appeal only raises the issue of clandestine removal of goods and this issue is not related either to the rate of duty of excise or to the value of goods for the purposes of assessment. 4. The appellant, on the one hand, admits that the impugned order of the Tribunal deals with issues relating to the rate of duty of excise and/or to the value of goods for the purposes of assessment in addition to the issue of clandestine removal which is challenged in this appeal. On the other hand, Mr.Amrinder Singh admi....
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....tantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-Section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-Section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and sh....
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....n. Rosy Woolen Mills sells the dyed yarn purchased by it, inter alia, from the respondent. The matter relates to the period 01.04.1999 to 14.11.2000. The appellant's case is that SBM evaded duty by under-valuing the goods namely grey acrylic yarn clearing them to the respondent and RWM at prices far less than even the cost of production. The price was lower than that of similar goods sold to other buyers. Other circumstances are indicated to show the close relationship between the three assessees SBM, the respondent and RWM. The Commissioner, therefore, adopted the average price at which the respondent, during the same period, bought similar goods from other vendors. Having done so, he demanded a duty of Rs. 5,19,100/- against SBM Woolen Mills. The respondent availed an exemption under Notification No.5/99/CE and 6/2000 which prescribes a concessional rate of duty for the dyed acrylic spun yarn subject to the condition that the same had been manufactured out of the goods on which the appropriate duty of excise, under the schedule thereto, had been paid and no credit of Central Excise Duty paid on the goods, had been taken. Having come to the conclusion that the goods were pur....
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....paragraph 7, the Tribunal dealt with the dispute regarding the demand of Rs. 15,14,161/- towards duty against the respondent on the basis of the incorrect availment of the exemption notification. In paragraph 8, the Tribunal upheld the payment of Rs. 36,78,122/- towards duty. The Tribunal held as under:- "Coming to the duty demand of Rs. 36,78,122/- against RD, this is based on the allegation that all the clearances of grey acrylic spun yarn by SBM to RWM and to other buyers who have purchased in cash have actually been diverted to RD who have used the same for unaccounted manufacture of dyed yarn which had been cleared clandestinely without payment of duty. On going through the records, we find that this allegation is based only on the presumption and there is absolutely no evidence to substantiate the same. Even if there is mutuality of interest between SBM and RD one hand and SBM and RWM on the other hand, it cannot be presumed that the yarn sold by SBM to RWM had actually be diverted to RD who had used it for unaccounted manufacture of died yarn. In view of this, we hold that duty demand of Rs. 36,78,122/- is not sustainable and is to be set aside." The position, th....
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....reme Court under Section 35 L and not to the High Court under Section 35 G. This would be so even if the appeal is only in respect of questions other than the rate of duty or the value of the goods for the purpose of assessment. It is the nature of the order of the Tribunal and not the scope of the appeal that determines the maintainability of the appeal under Section 35 G. 12. It is not necessary to look far for the reason for this provision. The intention is to consolidate all appeals from the order of the Tribunal in one Court - either in the High Court or in the Supreme Court. A contrary view would result in multiple appeals being filed before both the Courts where the order of the Tribunal relates to the determination of questions having a relation to the rate of duty of excise or value of goods as well as to other questions. In such cases the party which desires challenging the order of the Tribunal relating to both types of questions would have to file one appeal in the High Court and another in the Supreme Court. The party which desires challenging one type of issue would have to file an appeal before the Supreme Court and the other party that intends challenging the oth....
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....tions that fall within the ambit of Section 35 L as well as other questions lies to the Supreme Court under Section 35 L the mere fact that the party chooses to challenge only that part of the order that falls within the ambit of Section 32 G would make no difference. In other words, it cannot be said that the party that chooses to challenge the order of the Tribunal only so far as it relates to the determination of questions falling within the ambit of 35 G must file the appeal before the High Court even though the order also deals with questions that fall within the ambit of Section 32 L. In that event, if the other party files an appeal against the order of the Tribunal on issues that fall within the ambit of Section 32 L in the Supreme Court, the very purpose of Section 32 G of bringing the appeals either before the Supreme Court or before the High Court would be defeated. It can hardly be suggested that in that case, the appeal filed under Section 32 G before the High Court ought to stand transferred to the Supreme Court. The scheme of the Act in general and Sections 32 G and 32 L in particular do not indicate such a mechanism. 15. Our view is supported by the following jud....
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....ial but the nature of the order which is appealed against is relevant for the purpose of determining whether an appeal would lie in this Court or not." 17. In Commissioner of Service Tax Versus Ernst & Young Pvt. Ltd., 2014 (34) S.T.R. 3 (Del.), the Division Bench of Delhi High Court held:- "9. Before we examine other judgments, it is important to examine the language of Section 35G in the bracketed portion which relates to matters in which appeal is to be filed before the Supreme Court. Section 35L of the F. Act is specific. The words/expression used is "determination of any question in relation to rate of duty or value for the purpose of assessment". The word 'any' and expression 'in relation to' gives appropriately wide and broad expanse to the appellate jurisdiction of the Supreme Court in respect of question relating to rate of tax or value for the purpose of assessment. Further, if the order relates to several issues or questions but when one of the questions raised relates to "rate of tax" or valuation in the order in the original, the appeal is maintainable before the Supreme Court and no appeal lies before the High Court under Section 35G of the CE Act. Referri....
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....has been observed that the issues and contentions decided in the order-in-original would determine whether an appeal would lie before the High Court under Section 35G of the Central Excise Act, 1944 or before the Supreme Court under Section 35L of the aforesaid Act. The issue decided by the Tribunal and raised before the appellate court would not be relevant on the question of jurisdiction of the Supreme Court or the High Court under Section 35L or 35G of the aforesaid Act. This was apparent from the language and words of the two provisions and a contrary interpretation would lead to unacceptable results with one party filing appeal under Section 35G and the other party under Section 35L of the said Act. Further, the respondent may be denied right to file cross objections. It is noticeable that in the first round also, against the order of the Tribunal, an appeal was preferred before the Supreme Court by the assessee. 2. In these circumstances, the appeals are returned as they are not maintainable before the High Court. It is open to the appellant-Revenue to file an appeal under Section 35L of the Central Excise Act, 1944, if so advised, and in accordance with the law." ....
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....appeal under Section 35G of the Act is limited to an order of the Tribunal 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 the purposes of assessment. Thus Section 35G of the Act does not exclude the power of the High Court to entertain an appeal against an order passed by the Appellate Tribunal on the question of manufacture. The basic question involved in the present appeal as also contested by the parties from the initial stage is whether the activity of the assessee with respect to the goods in question cleared by them is manufacture? Thus, we do not find any substance in the first preliminary objection raised by the respondent assessee as the maintainability of the appeal before the High Court under Section 35 G of the Act and accordingly, the said preliminary objection is rejected. We hold that the appeal is maintainable under Section 35G of the Act." Mr. Sethi submitted that other questions that fall within the ambit of Section 35 L were also determined by the Tribunal in that case but as the appeal involved only the question of manufacture, it was held that it was maintainable ....