TaxTMI 
TaxTMI 
2019 (5) TMI 656
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....stice Dinesh Mehta For the Appellant(s) : Mr. Vikas Balia and Mr. Jagat Tatia For the Respondent(s) : Mr. Rajvendra Sarswat ORDER 11/04/2019 The present bunch of appeals under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944') arise out of a common judgment and order dated 11.5.2018 passed by the Central Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'the CESTAT or the tribunal'). All these appeals belonging to one family group can be broadly furcated in three categories; duly shown in Table 'A', 'B' and 'C'. Table-A S. No. DB EXCIA No. CESTAT Case No. Case Title 1 101/2018 E/50049/2018 Shree Bherav Engineers vs Commissione....
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....rav Diamond Impex; (iii) Shree Bherav Tools Corporation; and (iv) Shree Bherav Amla Food Processors. While item No. 6 to 9 mentioned in the above Table-A emanate from show cause Notice C.No.V (82) Adj./UDR/132/2015/174-184 dated 7.5.2015, pursuant whereof an order in original dated 29.8.2007 came to be passed confirming a demand of excise duty amounting to Rs. 58,47,246/- against Shree Bherav Diamond Tolls Pvt. Ltd and its related manufacturing firms namely (i) Shree Bherav Engineers (ii) Shree Bherav Tools Corporation; and (iii) Shree Bherav Amla Food Processors. Table-B S. No. DB EXCIA No. CESTAT Case No. Case Title 1 115/2018 E/50053/2018 Shree Bherav Tools Industries vs Commissioner of Central Excise & Serv....
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....ule 26(1) of the Rules of 2002 was imposed. To complete the narration of facts, it is to be noticed that since DB Central/Excise Appeal No.107/2018 involve both duty and penalty under Rule 25 of the Rules of 2002; it has been reflected in Table-A and Table-B both. As a matter of fact there are 15 appeals in all. It is pertinent that while passing the common order in original the adjudicating officer recorded as under : "....... Shri Mahendra Bohra Director of M/s. SBDTPL has floated the manufacturing as well as trading firms, over the period of time, in the name of his family members in order to circumvent the legal provisions and to evade the payment of central excise duty on the goods manufactured and removed clandestinely ....
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.... invoice required under Rule 11 of CER, 2002, without assessing and discharging the duty liability, without submitting Central Excise Return and without informing department that trading units were owned by related persons as defined under Section 4 of Central Excise Act, 1944. These acts of M/s.SBDTPL resulted in contravention of the provisions of Rule 4,6,8,9,10,11 and 12 of the Central Excise Rules, 2002 and Rule 9 and 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000 and thereby they have evaded the payment of Central Excise duty amounting to Rs. 3,49,75,706/- (Rs. 2,91,28,460/- +Rs. 58,47,246/-) during the period 2009-10 (Jan 2010 onwards) to 2013-14 and 2014-15 respectively which is determined u....
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....pellant was wary of maintainability of 6 appeals involving question of penalty before the Supreme Court. According to him since penalty did not involve question of determination/valuation of goods, the position of law was not clear. Hence, we embark upon to decide the question of maintainability of these appeals. Section 35G(1) of the Act of 1944 provides an appeal to the High Court against an order of the tribunal, however, with an exception to the effect that an appeal involving question of valuation of goods or rate of duty shall lie before Hon'ble the Supreme Court under Section 35L of the Act of 1944. It will not out of place to reproduce Section 35G(1) of the Act of 1944, which reads thus: "Section 35G. Appeal to High ....
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....ection 35G of the Act of 1944 is wide enough to include the appeals relating to penalty. This view of ours is based on a reading of provision contained in Section 35G(1), more particularly because of the use of the expression,"......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 purpose of assessment....." A perusal of the orders impugned reveals that the penalty in question has been levied under Rule 25/26 of the Rules of 2002 on the allegation that the valuation of the goods has not been properly made and/or value of clearances of all the manufacturing units need to be clubbed together. Hence, the appeals (mentioned in Table-B and Table-C above) ....