TaxTMI 
TaxTMI 
TaxTMI 
Central Excise Un-necessary litigation by government causing brain drain and loss of public money- must come to an end.
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....entral Excise Un-necessary litigation by government causing brain drain and loss of public money- must come to an end.<br>By: - DEVKUMAR KOTHARI<br>Central Excise<br>Dated:- 1-1-2026<br>Related judgments: Commissioner of CGST And Central Excise Siliguri Versus M/s. Zydus Healthcare Ltd. - 2025 (12) TMI 945 - SC Order Commissioner Of Central Goods And Service Tax And Central Excise Versus M/s. Zydus Healthcare Limited - 2025 (5) TMI 936 - SIKKIM HIGH COURT M/s Zydus Healthcare Ltd. Versus Commissioner of CGST & Central Excise, Siliguri. - 2023 (9) TMI 5 - CESTAT KOLKATA From order of the Supreme Court- para 1 reads as follows: * "There is a gross delay of 816 days in filing the Civil Appeal which has not been satisfactor....
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....ily explained by the appellant." Unquote- If we consider dates of orders as given, it is beyond doubt that the appeal was filed which was considered is against the order of CESTAT. This is because there is time leg of only seven month and four days only between judgments of HC and SC. If that be the case, then it can be said that appeal was filed and has been disposed off very urgently. However, that is not the case. Order of CESAT is of June,28, 2023 and judgment of the supreme Court is of December 12, 2025. So time leg is about 30 months this includes period of delay of 816 days. Furthermore appeal no. is No.- Civil Appeal Diary No(s). 66744/2025. This is of 2025 it is not likely to be against order of High Cou....
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....rt dated 8 May, 2025. Another reason is that it is very clear that the dispute was about valuation, which is barred for appeal before High Court in section 35G, in clear terms and it is well settled that such issue cannot be disputed before High Court, so the revenue might have filed appeal before the Supreme Court. It is worth to note that there is bar in sub-section (1) of S.35G for filing appeal before High Court as can be seen in the section reproduced below with highlights added: Section 35G. Appeal, to High Court.- * An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after 1st Day of July 2003 (not being an order relating, among other things....
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...., 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) if the High Court is satisfied that the case involves a substantial question of law. xxxxx Whereas an appeal on such issues is specifically provided before the Supreme Court in the following provision: Section 35L. Appeal to the Supreme Court. [(1) ]An appeal shall lie to the Supreme Court from- (a) xxx (b) any order passed by the Appellate Tribunal 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. 2[(2) For the purposes of this Chapter, the determination of any question....
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.... having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment.] So definitely appeal considered by honourable Supreme Court was against order of CESTAT and not judgment of the High Court. Therefore, there seems apparent typing mistake in the judgment of the Supreme Court in para 2 which reads as follows: * Even otherwise, we see no good ground to interfere with the impugned order passed by the High Court. In the order of CESTAT matter was restored vide para 14. Which reads as follows: 14. In view of the above discussion, we set aside the impugned order and remand the matter back to the Commissioner to decide the request for special r....
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....ate fixation applications of the Appellant on merit. The Appeal of the Appellant is decided on the above terms. Unquote: As the matter was remanded back/ restored to the Commissioner, therefore, in fact there was no reason to file appeal. However, appeal was filed before the Supreme Court. This was in view of provisions of S.35L of CE Act. With due respect, author feels that the team of honourable judges of the Supreme Court including law officers, the Personal Secretary and other secretaries need to be more careful to ensure that such mistakes are not crept in judgments and orders of the Supreme Court. In some of my earlier article also I had expressed my concern on such issues. For example, in article titled " Reside....
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....ntial property disputes - Interest SC held 9% as reasonable. Ground realities could not be emphasized by consumer who appeared in person against large team of counsels of Appellant / board." Author has pointed out mistakes in writing of petitioner vis a vis respondent. In the related judgment reported as THE CHIEF OFFICER, NAGPUR HOUSING AND AREA DEVELOPMENT BOARD (A MHADA UNIT) AND OTHERS Versus MANOHAR BURDE - 2025 (3) TMI 1396 - SC Order, learned team of tmi have also pointed out such mistakes by remarking as (sic. ---) at number of places. Reason for describing this case as un-necessary litigation: The appeal has been filed with 816 days condonation of delay petition. This is in spite of fact that long period i....
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....s allowed for filing of appeal before the Supreme Court. It is very clear that the dispute was about valuation, which cannot be disputed before High Court, so the revenue filed appeal before the Supreme Court. However, filing of appeal was not at all required because honourable CESTAT has not decided valuation but has only remitted back matter to the Commissioner, who could decide the matter as per law. Filing appeal with long delay also suggest that it was an after thought that the appeal was filed, knowingly that it is difficult to get condonation of such long delays. Furthermore, filing of appeal against order in which matter is simply restored to the Commissioner, is nothing but un-necessary litigation and wasting of highly sk....
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....illed manpower. This was a case, wherein it was not even necessary to seek opinion of counsel whether to file appeal. However, it is likely that an opinion was sought and Counsel was pleased to advise to file appeal so that he or his collegues can make big money even in case of un-necessary appeal. Wastage of time of hhighly skilled professionals: In this case there was COD petition and appeal. Revenue engaged one AOR and four other senior counsels. The case involved COD and appeal. When senior counsels are engaged by revenue in such matters, the other party has also to engage senior counsels and we find that the respondents / taxpayer had also engaged one AOR and four counsels to represent them. Although this was a simple case t....
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....o point out that the appeal is not proper against a simple order in which revenue authorities are directed to decide afresh and matter is entirely open for both sides. Question - why such matters require strong team of senior counsels? Why such matters cannot be represented by concerned party himself in person or through its officers? Why honourable Courts allows so many counsels to be present in the Court? Why so many counsels appear, though practically case is represented by one counsel for one party rather in many situations by one counsel for several cases. Such practices must come to an end. Judgment of High Court: It is likely that we will notice another appeal and judgment against the following judgment. Commissi....
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....oner Of Central Goods And Service Tax And Central Excise Versus M/s. Zydus Healthcare Limited - 2025 (5) TMI 936 - SIKKIM HIGH COURT<br> Scholarly articles for knowledge sharing by authors, experts, professionals ....