TaxTMI 
TaxTMI 
2024 (1) TMI 958
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....aintainability of these two appeals and submits that the appeal filed by the Appellant Department under Section 35G of the Central Excise Act, 1944 (hereinafter to be referred as the Act) is not maintainable before this Court and this Court has no jurisdiction to entertain the same, inasmuch as, one of the question in the instant case relates to determination of value of the excisable goods for the purpose of assessment which falls within the exclusive jurisdiction of the Hon'ble Supreme Court of India under Section 35L of the Central Excise Act, 1944. Learned counsel contended that an appeal against an order passed by Ld. Tribunal under Section 35C of the Central Excise Act, 1944 where one of the issues involved relates to determination of valuation of excisable goods and/or rate of duty of excisable goods, amongst other things, for the purpose of assessment, the appeal would lie before the Hon'ble Supreme Court under Section 35L of the Act. The jurisdiction of the High Court in such matters are specifically excluded under Section 35G and it falls within the exclusive jurisdiction of the Supreme Court under Section 35L of the Act. 4. Learned counsel further draws att....
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....stions raised by the department in these Tax Appeals relate to determination of valuation of excisable goods and/or rate of duty of excisable goods. He further submits that neither the order of the CESTAT, Kolkata is related to valuation of goods/rate of duty nor the questions raised in appeal are related to them. Hence, there is no applicability of Section 35L (2) on this issue. He lastly submits that both these appeals are maintainable under Section 35-G and Section 35-L(b) is not applicable. 6. Having heard learned counsel for the parties and after going through the records of the case it transpires that the Assessee has raised an objection to the effect that the appeals filed by the Appellant Department under Section 35G of the Central Excise Act, 1944 is not maintainable before the High Court and this Court has no jurisdiction to entertain these appeals, inasmuch as, one of the question in the instant case relates to determination of value of the excisable goods for the purpose of assessment which falls within the exclusive jurisdiction of the Hon'ble Supreme Court under Section 35L of the Central Excise Act, 1944. It has been submitted by the Assessee that an appeal aga....
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...., 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. [(2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment. (Emphasis Added) As per sub-Section (2) of Section 35L, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment. The provision of Section 35G of the Central Excise Act, 1944 is set out below:- SECTION 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 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. XXXX (Emphasis....
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....n is also invited to Circular No. 935/25/2010-CX., dated 21-9-2010 [2010 (258) E.L.T. T3] regarding Measures to streamline the processing of departmental litigation before the Courts and Tribunals. Para 2. Annexure I of the said Circular deals with provisions for filing of (a) Civil appeals/SLP against the High Court order before the Supreme Court and (b) Civil Appeal against any Tribunal order. It was mentioned therein that Civil Appeal against the Tribunal order is required to be filed in the Supreme Court in cases relating, among other things, to the determination of any question having a relation to the rate of duty or the value of goods for the purposes of assessment as statutorily prescribed. Para 3. It has come to the notice of the Board that field formations have filed appeals in the jurisdictional High Courts in matters relating either to determination of rate of duty or value of the goods which ought to have been filed in the Supreme Court. Such appeals get dismissed by the High Courts on the ground of jurisdiction alone, invariably after pending for a long time. Civil Appeals filed in the Supreme Court in such cases have frequently been dismissed on the....
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....3- The notices in their defence reply ................................ The Noticee submits that one Sri Hemant Agarwal having mobileno. 9350160009 vide his letter dated 17-08-2009 stated that he is working as a Marketing & Sales Head in M/s Trehan Home Developers, Jamshedpur and that the said company had purchased Steel Rods (TMT Bars) from the Noticee for his construction company. He also provided details of payments made through cheques. Sri Hemant Agarwal in the said letter categorically stated that they have made payments by cheques only and there is no payment in cash to the Noticee. The Noticee submitted that a perusal of the statement of Sri Hemant Agarwal it is evident that the allegation of undervaluation and flow back of funds are perverse and contrary to the materials on record. The allegation that the Noticee has purportedly received Rs. 19,75,568/- over and Rs. 70,43,349/- does not stand proved. 124 - I find that the noticee again submitted reply in respect of only one case ignoring and isolating the other entries mentioned in the said writing pad...................... Investigation proved its case of flow back of fund of sale proceeds by M/s....
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....pellants." (Emphasis Added) 12. At this stage, it is relevant to mention that Section 35G and Section 35L of the Central Excise Act, 1944 applies to Service Tax also by virtue of Section 83 of the Finance Act, 1994 which reads as follows:- Chapter V of the Finance Act, 1994 Section 83. Application of certain provisions of Act 1 of 1944. - The provisions of the following sections of the [Central Excise Act, 1944], as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise :- [sub-section (2A) of section 5A, sub-section(2) of section 9A], 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, [12E, 14, [15, 15A, 15B] 31, 32, 32A to 32P, 33A, 35EE, 34A, 35F]], [35FF,] to 35O (both inclusive), 35Q, [35R,] 36, 36A, 36B, 37A, 37B, 37C, 37D [38A] and 40. (Emphasis Added) Even the provisions under Section 130 and Section 130E of the Customs Act, 1962 deals with appeal to High Court and Supreme Court respectively which are pari materia to Section 35G and Section 35L of the Central Excise Act, 1944, hence, the ratio of the judgment rendered by different Courts under the Cu....
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.... for the purpose of the levy of duty under the Act, in our opinion, the assessee ought to have carried the matter by way of an appeal before this Court under Section 35L of the Central Excise Act, 1944. Further, in the case of CST Vs. Ernst & Young Pvt. Ltd., reported in 2014 (34) STR 3 (Del.), it is held by the Delhi High Court that where the Order-in-Original (Adjudication Order) is relating to several issues or questions and one of the issue or question relates to rate of tax or valuation, the Appeal would lie before the Supreme Court under Section 35L of the Central Excise Act, 1944 and not before the High Court under Section 35G. The relevant portion of the said judgment is set out below- 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 jurisdicti....
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....inst the order of the Adjudicating Authority. An appeal does not lie to this Court from the order of the adjudicating authority/Commissioner. The issue as to whether an appeal is maintainable or not must, therefore, be decided on the basis of and taking into consideration the order passed in appeal by the appellate authority and not by the order passed by the adjudicating authority. In any event, the order of the adjudicating authority would stand merged in the order of the appellate authority. In other words, while determining whether an appeal is maintainable under Section 35G or not, it is necessary to see whether the order passed in appeal by the Appellate Tribunal and not the order passed by the adjudicating authority determines any question having any relation to the rate of duty of excise or to the value of goods for purposes of assessment. We must, therefore, ascertain what the appellate authority decided in the impugned order." (Emphasis added) 14. At this stage, it is also profitable to refer the case of CST Vs. Scott Wilson Kirkpatrick (I) Pvt. Ltd., reported in 2011 (23) STR 321 (Kar.), wherein the Karnataka High Court has held that the word "for the purpose of as....
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.... to the service tax payable on any service/taxable service. (b) The value of the taxable service for the purposes of assessment? (c) A dispute as to the classification of services. (d) Whether those services are covered by an exemption notification or not? (e) Whether the value of services for the purposes of assessment is required to be increased or decreased? (f) The question of whether any services are taxable services or not? (g) Whether an activity is a service rendering activity or not, so as to attract levy of service tax? (h) Whether a particular service falls within which heading, sub-heading of Section 65(105) of the Service Act, 1994 which defines "taxable service. 37. From the aforesaid discussion, it is clear that an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of service taxes or to the value of services for the purposes of assessment lies to the Supreme Court under Section 35L(b) of the Act and not to the High Court under Section 35(G)." 15. As indicated herein above, there are two views, inasmuch as, in the case of Pr. Commis....
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.... or Supreme Court. In the case of CST Vs. Scott Wilson Kirkpatrick (I) Pvt. Ltd. cited (supra) the Karnataka High Court explained the Legislative intent behind bifurcation of jurisdiction between Supreme Court and High Court held in the following lines :- Para 38. The intention behind this bifurcation of jurisdiction between the Apex Court and the High Court seems to be that more often than not, any decision on these aforesaid aspects not only affects the interest of the parties rendering services who are parties to a dispute, but also to the parties rendering those services throughout the country. In a country governed by Parliamentary legislation because of the territorial bifurcation in forming states and because of the divergent opinion which is possible, the service tax payable would vary from place to place. In order to bring uniformity in the levy of service tax throughout the country and consequently to see that the country's finance is not affected, the Parliament has vested the jurisdiction to decide the disputes with the Apex Court. Therefore, we see a policy underlining this bifurcation of the jurisdiction between the Apex Court and the High Courts. All othe....
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....he 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 other type of issue would have to file an appeal before the High Court. There could potentially be four appeals against the same order of the Tribunal - two in the High Court and two in the Supreme Court. It was precisely to avoid these situations that Section [35G] was enacted. It was to avoid the bifurcation of proceedings before the Supreme Court and the High Court. 13. This would also avoid conflicting findings. A view to the contrary would lead to the possibility of an appeal against the order of the Tribunal being maintainable in certain respects before the High Court and in other respects before the Supreme Court. This could lead to considerable confusion and complication. For instance, it may well be necessary in a given case for the Supreme Court to refer to, analyse and adjudicate upon the facts in relation to an order relating 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. It may equally be necess....