Commissioner Of Customs, Central ... vs M/S. Amrut Sanjivani Sugar Cane ...

                                                                      CEA 5/16        
  
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     BENCH AT AURANGABAD               
                                      
                    CENTRAL EXCISE APPEAL NO.5/2016

                  Commissioner of Customs,
                  Central Excise and Service Tax,
                  Nashik-II Commissionerate,
                  Nashik.                     
                                    ...Appellant..
                                    (Org.respondent)
                         Versus

                  M/s Amrut Sanjivani Sugar Cane
                  Transporter, Kopargaon.
                  Dist.Ahmednagar. 
                                     ...Respondent...
                                     (Org.appellant) 
                                                      
                          .....
Shri Dwarkadas S. Ladda, Standing Counsel for appellant.
Shri Abhay Kolte, Advocate for respondent. 
                          .....
  
                       CORAM: ANOOP V. MOHTA &
                               SUNIL K. KOTWAL, JJ. 

DATE: 21.06.2017 ORAL JUDGMENT (Per Anoop V. Mohta, J.) : 1] Heard learned counsel counsel appearing for parties. 2] The preliminary objection is raised to the maintainability of present appeal filed u/s 35G of the Central Excise Act, 1944 (the Act) and the Rules made thereunder as issue is about rate of duty / value of ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:59:23 ::: CEA 5/16

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goods. The contention is clear from the plain reading of Section 35L of the Act that the appeal is maintainable before the Supreme Court. The learned counsel for appellant is unable to oppose the same. 2] After considering the issue so raised and the submissions so made revolving around the order passed by CESTAT, we are inclined to dispose of present appeal by accepting the contention of the learned counsel appearing for respondent.

3] A Division Bench of this Court in Commissioner of Customs and Central Excise, Goa v. Primella Sanitary Products (P) Ltd. (2002 (145) ELT 515 (Bombay), referring to the dispute relating to the rate of duty, has dealt with the issue. The Division Bench in the said case in paragraph no.10 has observed as under :-

"10. Section 35H of the Central Excise Act, 1944 prohibits the Commissioner of Central Excise or the other party from making an application to the High Court for directing the Appellate Tribunal to refer any question of law arising from such order of the Tribunal against 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. We, ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:59:23 ::: CEA 5/16

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therefore, find considerable force in the submission of the learned Counsel for the respondent that the application filed bay the applicant raises issue which relates to the determination of a question having relation to the rate of duty of excise or to the value of the goods for the purposes of assessment and, as such, a reference under Section 35H of the Central Excise Act, 1944 is not maintainable."

4] Therefore, taking over all view of the matter and without expressing anything on merits of the matter, we are disposing of present appeal as not maintainable with liberty to the appellant to take appropriate proceedings / appeal in accordance with law. No costs.

(SUNIL K. KOTWAL, J.) (ANOOP V. MOHTA, J.) ndk/c216177.doc ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:59:23 :::