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Maintainability of appeal to High Court against order relati

Posted on 06 September 2009 by Nirav Pankaj Shah

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Maintainability of appeal to High Court against order relating to determination of any question in relation to rate of duty or to value of goods for purpose of assessment

Determination of any question in relation to rate of duty or to the value of goods for the purpose of assessment, when the same is decided by the CESTAT, appeal thereagainst is provided to the Supreme Court under section 35L(b) of the Central Excise Act, 1944 and no such appeal is permissible to the High Court.

HIGH COURT OF DELHI
Commissioner of Service Tax
v
Delhi Gymkhana Club Ltd.
CEAC Nos. 5 of 2009 and 17 of 2007
August 28, 2009

RELEVANT EXTRACTS:
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6. Section 35E deals with powers of the Board or Commissioner of Central Excise to pass certain orders. We are concerned with sub-section (5) and explanation thereto, which is in the following terms :-

“35E. Powers of Board or Commissioner of Central Excise to pass certain orders. –
xx xx xx
(5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty or excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue.
Explanation. – For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question –
(a) relating to the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 (5 of 1986), or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28 th day of February, 1986; or
(b) relating to the value of goods for the purposes of assessment of any duty of excise in cases where the assessment is made on or after the 28 th day of February, 1986; or
(c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or
(d) whether any goods fall under a particular heading or sub-heading of the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or
(e) whether the value of any goods for the purposes of assessment of duty of excise shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act.”
7. Section 35G was introduced by the Finance Act, 1999 with effect from 11.5.1999 and Finance Act, 2003 with effect from 14.5.2003.
We are concerned mainly with sub-section (1) and (2) thereof, which
read as under :-
“35G. Appeal to High Court. – High Court from every order passed in appeal by the Appellate Tribunal on or after the 1 st 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), if the High Court is satisfied that the case involves a substantial question of law.
(2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High court and such appeal under this sub-section shall be –
(a) file within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party.
(b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party;
(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.
xx xx xx ”
8. Section 35L provides appeal to the Supreme Court and is couched in the following nature :-
“35L. An appeal shall lie to the Supreme Court from –
(a) any judgment of the High Court delivered on a reference made under section 35G or section 35H in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or
(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.
9. It is clear from the above that against certain orders appeal is provided to the High Court, whereas in respect of certain other orders passed by the appellate tribunal, direct appeal to the Supreme Court is provided. Section 35L(a) deals with the appeals which are carried from the orders of the High Court. stipulates the nature of orders assed by the appellate tribunal, against which appeal is to be preferred to the Supreme Court. Where order passed by the appellate tribunal relates 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, the aggrieved party is to approach the Supreme Court directly by filing appeal under Section 35L(b). This is made clear even by the provisions of Section 35G which provides for appeal to the High Court, as it specifically excludes the orders relating, among other things, determination of any question having relation to the rate of duty of excise or to the value of goods for the purpose of assessment.
11. In view thereof, it is clear that determination of any question in relation to rate of duty or to the value of goods for the purpose of assessment and when it is decided by the CESTAT, appeal thereagainst is provided to the Supreme Court under Section 35L(b) and no such appeal is permissible to the High Court.
12. It would be of interest to note at this stage that in the case of Perfect Electric Concern Pvt. Ltd. v. Asst. Collector/ Commissioner, Central Excise, 2000 (118) ELT 578 (Del), a writ petition was filed against such an order without availing the statutory remedy of appeal to the Supreme Court provided under Section 35D of the Act. The petitioner therein, based on the judgment of the Supreme Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 was that the remedy of writ was always available. This contention was turned down and writ petition was dismissed by this Court observing that the judgment in L.Chandra Kumar (supra) nowhere suggests that the petitioner should file petitions under Articles 226/227 of the Constitution of India even bypassing the statutory remedy of an appeal to the Supreme Court provided by an enactment. backdrop, it cannot be disputed that if the question of determination relates to the rate of duty or excise or the value of goods “for the purposes of assessment ”, appeal lies to the Supreme Court. cannot be disputed that in the present case that the question of rate of duty of service tax for the purpose of assessment arose for consideration and has been decided and, therefore, normally an appeal to this Court would not be maintainable.
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Tags :- maintainability appeal high court against order relati




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