TaxTMI 
TaxTMI 
2021 (11) TMI 658
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....its factory situated at Jorhat, Assam. The appellant is availing the benefit of exemption under Notification No. 8/2004-CE dated 21.01.2004, as amended by Notification No. 28/2004-CE dated 09.07.2004. The period in dispute in this appeal is from March 2004 to March 2005. (ii) Order dated 06.02.2007 was issued by the Commissioner whereby the direction was made for recovery of amount deposited in the Escrow account by way of forfeiture for the alleged violation of the conditions of the exemption notification availed by the appellant as aforesaid. Against the said order, in the appeal filed by the assessee, the Tribunal vide Order dated 06.08.2007 remanded the matter back to the Commissioner for fresh consideration since the aforesaid orders were issued without granting opportunity of being heard in violation of principles of natural justice. (iii) Pursuant to the Tribunal's Order dated 06.08.2007, the Commissioner re-decided the matter in remand proceedings vide Order dated 30.01.2008, whereby it confirmed the forfeiture of amount deposited in Escrow account consequent to findings made with regard to violation of conditions of exemption notification and allowed the ....
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....ble to be refunded. The appeal was, accordingly, dismissed. 3. Being aggrieved, the present appeal has been filed by the Department on the substantial questions of law urged. The learned counsel for the appellant submits that vide the Order-in- Original No. 01/COMMR/ADJ/CE/DIB/08 dated 30.01.2008, the forfeiture of the amount of Rs. 98,89,695.00 and Rs. 3,88,344.65 makes the total amount forfeited as Rs. 1,02,92,040.00 (Rupees One Crore Two Lakh Seventy two Thousand Forty only). As such the amount being above the monetary limit prescribed by the Ministry of Finance vide instructions of Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes & Customs dated 22.08.2019 fixing the monetary limit of Rs. 1 Crore as the limit below which Appeals cannot be filed before High Court, it does not debar the Department from maintaining the present Appeal. On merits, the learned counsel for the appellant submits that in terms of Notification No. 08/2004 as amended by Notification No. 28/2004-CE dated 09.07.2004, since the amounts were not deposited by the manufacture/assessee within 60 days from the end of relevant quarter, the amounts were forfeited by the Department. ....
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....eal is not maintainable and the same should be dismissed in Limine as not maintainable. Notwithstanding that the learned Senior counsel submits that even on merits this Appeal is not maintainable as there are no substantial questions which arises in the facts of the case which require any deliberation. The dispute sought to be agitated by the appellant relates to factual issues which have been correctly arrived at by the Tribunal. As per the mandate of Section 35G of the Central Excise Act; appeals to the High Court can be admitted only on substantial questions of law. The learned Senior counsel for the assessee submits that as there are no substantial questions of law made out, the appeal merits dismissal in Limine. The learned Senior counsel for the appellant has referred to the Judgment of the Apex Court in Commissioner of Income Tax vs. Hotel & Allied Trades Pvt. Ltd, reported in (2019) 18 SCC 735 to buttress his submissions. 5. We have heard the learned counsels for the parties and we have also perused the pleadings on record. Since the question of maintainability of the appeal is raised, we propose to examine the issue of maintainability at the outset. The objections regar....
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....ld be contested irrespective of the prescribed monetary limits. 5. Since withdrawal of Departmental Appeals is a long drawn activity requiring routine and constant monitoring, formats have been introduced in the Monthly Performance Report for all field formations to send monthly reports regarding status of withdrawal of appeals in the MPR (refer table P/P-1).Details of the said cases should also be available in a separate register for further perusal by the Board as and when required. Tables are in the Annexure-A attached. The description of the Tables in brief is provided below. a) Table P: Position of withdrawal with reference to raised monetary limits SC / HC / CESTAT (as per instruction dated 22/08/2019) b) Table P-1: Remaining to be filed/withdrawn SC/HC/CESTAT. Sd/- (Rohit Singhal) Director (Review)" 6. It is seen from a perusal of the circular that the monetary limit has indeed been prescribed for the Department, below which no Appeals can be filed. In so far as the High Court is concerned, the Monetary Limit prescribed is 1(one) Crore below which no Appeals can be filed before the High Court. However, Clause 4 of the said instructions ....
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....7 dated 31.03.2017 ordering not to allow further CENVAT credit for the period March, 2004 to March, 2005. D. Whether Hon'ble CESTAT, Kolkata has erred in not appreciating the ratio laid down by the Hon'ble Apex Court in the civil appeal no. 3327/2007 in the matter of Commissioner of Customs, Mumbai -Vs- Dilip Kumar and Company & Ors which is also squarely applicable in the instant case. 8. A reference to Section 35G of the Central Excise Act, 1944 shows that an appeal shall lie to the High Court from every order passed by an appellate Tribunal provided that the High Court is satisfied that the matter involves substantial questions of law. The appeal under Section 35G is a qualified appeal and not an absolute and/or unqualified and/or unrestricted appeal. Unless, therefore, an appeal involves a substantial question of law, no appeal can be entertained by the High Court from the order passed in an appeal by an appellate Tribunal. For convenience Section 35G of the Central Excise Act, 1944 is extracted below: "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 ....
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....ction to go behind or to question the statements of fact made by the Tribunal. The statement of the case is binding on the parties and they are not entitled to go-behind the facts found by the Tribunal in the statement." 10. As discussed above, as per the mandate of the amended Section 35G of the Central Excise Act that there must be a substantial question of law in order to prefer an appeal before the High Court against the order of the Tribunal. The Apex Court while dealing with the provisions of Section 260A of the Income Tax Act, 1961, where the provisions of appeal to the High Court are pari materia with the provisions of Section 35 of the Central Excise Act; held that the conditions mentioned in Section 260A must be strictly fulfilled before an appeal can be maintained under Section 260A. The Apex Court held that if the appellant is unable to show that a substantial question of law has arisen for determination, there is no impediment on the part of the High Court to dismiss the appeal without even admitting the appeal. The Apex Court in M. Janardana Rao vs. Joint Commissioner of Income Tax, reported in (2005) 2 SCC 324 has laid down the tests to determine as to whether a s....
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....n the light of law laid down by the Apex Court, the substantial questions of law as urged by the appellant in the present proceedings will have to be examined. 12. We have carefully perused the substantial questions of law presented by the appellant. It is seen that substantial questions A, B and C pertains to allowing of CENVAT credit. A perusal of the order dated 31.03.2017 passed by the Commissioner, will reveal that the show-cause Notices which were issued against the assessee for wrong utilization of credit during the period of March, 2004 to March, 2005 has already been dropped by the Additional Commissioner, Central Excise, Dibrugarh vide order dated 30.01.2009 and there is no pending show cause Notice issued to the assessee in relation to admissibility of CENVAT credit. The findings of the Additional Commissioner, Central Excise, Dibrugarh vide order dated 30.01.2009 that the charges framed against the assessee for wrong utilization of credit during the period of March, 2004 to March, 2005 were dropped had not been challenged or questioned by the Department before CESTAT and such findings of the Addl. Commissioner having attained finality, there was no scope for the CEST....
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.... that the impugned order of Judgment of the CESTAT/Tribunal is in violation of the ratio laid down by the Apex Court in this case . 14. We have carefully perused the Judgment of the Apex Court in Dilip Kumar (Supra), the ratio in the said Judgment lays down the principle for interpretation of taxing statute as well as the exemption provisions or exemption notification. The Apex Court has held that the question whether the assessee falls within the notification or the exemption clause, has to be strictly construed and when once the ambiguity or doubt is resolved by interpreting the applicability of exemption clause strictly, the Court may construe the notification by giving full play bestowing wider and liberal construction. We respectfully agree with the ratio laid down by the Apex Court in Dilip Kumar (Supra) as there is no quarrel with the proposition laid down in the said matter. However, in view of the peculiar facts involved in the present proceedings, the appellant cannot draw any support from the said case cited. In the present proceedings as already discussed above, there are findings of fact arrived at by the Addl. Commissioner vide its Order-in-Original dated 30.01.200....