TaxTMI 
TaxTMI 
2021 (12) TMI 1013
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....Bench, which Larger Bench is accordingly constituted pursuant to the Administrative Order passed by the learned Chief Justice in view of the said order dated 6th September, 2018. The Division Bench has referred following questions of law to the Full Bench. (i) Whether on the facts and circumstances of the case and in law, the issue of a demand being time barred when it is made on the basis of valuation and / or rate of duty, is an issue relating to the assessment of goods and, therefore, an appeal under Section 35G of the Act, is not maintainable before this Court ? (ii) Whether an appeal under Section 35G(1) of the Act would be maintainable before this Court when there is no dispute with regard to the rate of duty and / or valuation as arrived at by the Tribunal (both parties accept the decision of the Tribunal on that issue) and challenge the impugned order only to the extent of the demand being barred by limitation ? 2. It would be appropriate to set out few facts for better appreciation of the dispute involved herein and for the purpose of answering the questions of law involved and referred to the Full Bench for determination. 3. The respondent has an Oil Terminal where ....
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....ntral Excise Rules, 2001/2002. In the said show-cause notice, the respondent was also called upon to show-cause as to why interest under Section 11AA/AB of the said Act should not be charged and recovered from them. 7. On 30th October, 2007, the Commissioner of Central Excise, Belapur adjudicated upon the said show-cause notice dated 30th September, 2005 and held that the respondent had paid the duty on a lower value which purportedly was the subsidized value fixed by the Oil Coordination Committee for PDS sale. According to the impugned order, the respondent had recovered higher value from Oil Coordination Committee than the value on which they had paid the Central Excise duty which is not permissible as per amended Section 4 of the said Act introduced w.e.f. 1st July, 2000. The Commissioner also held that the respondent is also liable to pay interest under Section 11AB of the said Act. 8. The respondent had raised the point of time bar claim on the ground that there was no case of invoking the authority in the extended time limit. In the impugned order, the Commissioner observed that the respondent at no stage informed the revenue that they were recovering higher amounts form t....
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....rned senior counsel that in this case, the order passed by the Commissioner of CGST & Central Excise confirming the demand of duty and payment of interest and penalty against the respondent is upheld by the said Tribunal. The respondent has not impugned the said order passed by the Tribunal confirming the demand made in the show-cause notice regarding payment of duty, interest and penalty. He submits that only the revenue has impugned the order passed by the Tribunal setting aside the demand made by the revenue against the respondent on the ground of limitation. 13. Learned senior counsel submits that the issue of limitation which is subject matter of the Central Excise Appeal filed by the revenue is not 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 the purposes of assessment. Thus the said issue would not be covered by the exclusion placed in the bracket of Section 35G which orders are appealable before the Hon'ble Supreme Court under Section 35L of the said Act. 14. It is submitted by the learned senior counsel that the issue as to whether the revenue could have invoked ext....
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.... in fact consideration received for services classifiable under 'Storage and Warehousing' services as claimed by the revenue. No substantial question of law is formulated by this Court on the issue of limitation by the Division Bench in case of APM Terminals India Pvt. Ltd. (supra) as has been framed in this matter. 18. Ms. Padmavati Patil, learned counsel for the respondent submits that her client has not disputed the order passed by the Commissioner on the issue of recovery of duty, interest and penalty by preferring an appeal before the Tribunal, as such and has accepted that part of the order. It is vehemently submitted that the issue of limitation has no direct relation to the rate of duty or value of goods for the purposes of assessment. The issue of limitation is inter-se issue in the facts of this case. She has strongly placed reliance on the judgment of the Hon'ble Supreme Court in case of Commissioner of Customs, Bangalore-1 v/s. Motorola India Ltd, (2019) 9 SCC 563 dated 5th September, 2019 so as to claim that after construing the provisions of Sections 130 and 130E of the Customs Act, 1962 which are respectively in pari-materia to Sections 35G and 35L of the Central Ex....
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....e Court under Section 35L cannot possibly depend upon the nature or scope of the appeal that the party intends filing. A party may seek to challenge only that part of the order of the Tribunal which relates to questions other than those relating to the rate of duty of excise or the value of the goods for the purposes of assessment. Such an appeal would, absent any other question, lie to the High Court. Once it is held that an appeal against the order of the Tribunal which deals with questions that fall within the ambit of Section 35L as well as other questions lies to the Supreme Court under Section 35L, the mere fact that the party chooses to challenge only that part of the order that falls within the ambit of Section 35G would make no difference. 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 Section 35G must file the appeal before the High Court even though the order also deals with questions that fall within the ambit of Section 35L. In that event, if the other party files an appeal against the order of the Tribunal on issues that fall within the ambit o....
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....e in this matter so as to assist this Court on the question of law referred to the Full Bench by the Division Bench and would submit that the issue of limitation being a mixed question of fact and law, appeal cannot be preferred before the Hon'ble Supreme Court under Section 35L of the said Act. 25. Sections 35G(1), 35H(1) and 35L of the Central Excise Act, 1944 are extracted as under :- "Section 35G(1) :- 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." "Section 35H(1) :- Application to High Court - (1) The Principal Commissioner of Central Excise or Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 35C passed before the 1st day of July, 2003 (not being an order relating, among othe....
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....n oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed (before the establishment of the National Tax Tribunal) by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment." 27. It is admitted position that the Commissioner of Central Excise and Customs in the order dated 30th October, 2007 had confirmed the demand made in the show-cause notice in respect of excise duty, interest payable under Section 11AB and also penalty under Section 11AC of the said Act. The Commissioner of Central Excise rejected the plea of limitation raised by the respondent herein on the ground that since the transactions value has a direct impact on the liability of duty after 1st July, 2000, the respondent-assessee was duty bound to declare the correct transaction value and to pay duty accordingly. It was a clear case of mis-declaration and suppression of facts justifying the invocation of the extended time limit. 28. It i....
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....e admitting an appeal under Section 130E(b) of the Customs Act, 1962 (which is pari materia to Section 35L of the Excise Act), the question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty and that this is a sine qua non for the admission of the appeal before this Court and such question must involve a substantial question of law which has not been answered or on which there is a conflict of decisions. It was further held in this case that if the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter. 32. In our view, any decision on the issue whether the revenue could have invoked the extended period of limitation for recovery of the excise duty, or would not have any bearing or impact on the rate of duty of excise or to the value of goods for the purposes of assessment. Such determination on the issue of limitation would also have no bearing on the issue of determination of taxability....
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.... the facts of this case, order of Tribunal holding that the revenue could not have invoked the extended period of limitation for recovery of excise duty from the respondent-assessee purely based on the finding of facts inter-se and would not fall within the purview of public importance falling under Section 35L of the said Act. In this case, it is not the case of the respondent-assessee that the issue of limitation decided by the Tribunal would involve the question of any general/public importance. 36. In our view, the issue as to whether the revenue could have invoked the extended period of limitation for recovery of excise duty being a question of fact and/or a mixed question of fact and law, only such order cannot be impugned before the Hon'ble Supreme Court under Section 35L of the said Central Excise Act. 37. The Judgments of Hon'ble Supreme Court in case of Navin Chemicals Mfg. & Trading Co. Ltd. (supra) and in case of Steel Authority of India Ltd. (supra) have been adverted to by a three Judge Bench of the Hon'ble Supreme Court in case of Commissioner of Customs, Bangalore-1 (supra). After construing the provisions of Sections 130 and 130E of the Customs Act which are resp....
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....a). The principles laid down in those judgments would apply to the facts of this case. We are respectfully bound by the principles of law laid down by the Supreme Court in those three judgments. 40. In our view, the order of this Court in case of Facor Steels Ltd. (supra) admitting the Central Excise Appeal preferred under Section 35G of the Central Excise Act rejecting the objection relating to issue of maintainability of appeal against the issue of limitation and having admitted the said appeal is the correct view. 41. Insofar as the judgment of this Court in case of APM Terminals India Pvt. Ltd. (supra) relied upon by this Court while referring questions of law to the Full Bench indicates that a classification dispute between the revenue and the assessee was canvassed before this Court in the said matter. The question was whether High Court would have jurisdiction to entertain an appeal under Section 35G(1) of the Central Excise Act? In our view, the Division Bench of this Court was not correct in holding that the said judgment could not be reconciled with the order passed by this Court in Facor Steels Ltd. (supra) thereby admitting the appeal. In case of APM Terminals India P....