2018 (9) TMI 824

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....evenue has urged the following questions of law for our consideration : (a) Whether in the facts and circumstances of the case and in law, was Tribunal right in setting aside the order in original dated 27.08.2009 instead of remanding back the matter for fresh consideration of the issue of marketability and excisability of the goods? (b) Whether in the facts and circumstances of the case, the impugned order dated 12.11.2013 passed by the Tribunal is in violation of principles of natural justice? (c) Whether in the facts and circumstances of the case, the Tribunal is right in disapproving the issue of marketability of the goods already established vide order in original No.5/2000 dated 31.05.2000 which had attained finality on the issue o....

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....er res integra as this Court in Bajaj Auto Ltd. Vs. Union of India, 2016 (4) STR 384 while dealing with an issue whether service tax is liable on payment of royalty held that it cannot be a matter of service, therefore, outside the scope of Finance Act, 1994. Thus, it was the issue of rate of duty i.e. taxability and this Court had no jurisdiction to entertain such an appeal under Section 83 of the Finance Act, 1994 read with Section 35G of the Act. This being an issue of rate of duty. Our attention is also invited to insertion of sub-section (2) to Section 35L of the Act by the Finance Act, 2014 w.e.f. 6th August, 2014. This Court held that the above insertion which states that any question relating to rate of duty shall include taxabilit....

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....of this Court in Bajaj Auto Ltd. (supra) rendered on 24th June, 2015. However, the subsequent decision in Bajaj Auto Ltd. (supra) had not noticed the earlier decision in Global Vectra Helicorp Ltd. (supra). Therefore, in these circumstances, it was submitted that the appeal be considered for admission following the decision of this Court in Global Vectra Helicorp Ltd. (supra). 9. There is no dispute between the parties that post insertion of sub-section (2) to Section 35L of the Act w.e.f. 6th August, 2014, issues of taxability and excisability arising from the order of the Tribunal would be appealable to the Hon'ble Supreme Court. The issue on which there seems to be an apparent conflict of view is in respect of orders passed by the T....

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....td. 2009 (234) E.L.T. 220. 11. It is true Global Vectra Helicorp Ltd. (supra) did not refer to the decision of the Apex Court in Navin Chemicals Ltd. (supra). However, one must not loose sight of the fact that Navin Chemicals Ltd. (supra) was rendered in the context of the Customs Act, 1962, in which the similar insertion made by the Finance Act of 2014 w.e.f. 6th August, 2014 of sub-section (2) to Section 35L of the Act, was not done. This Court in Global Vectra Helicorp Ltd. (supra) was dealing with service tax under the Finance Act, 1994, to which the provisions of Section 35L of the Act was made applicable and not the provisions of the Customs Act, 1962. This Court in Global Vectra Helicorp Ltd. (supra) was conscious of the amendment m....