The Commissioner Of Central ... vs Bahar Agro Chem And Feeds Pvt. Ltd
2017 Latest Caselaw 4348 Bom

                                                                              904 CEXA 135-15.doc

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                                      
                                   CENTRAL EXCISE APPEAL No. 135 OF 2015
                                                        

                The Commissioner of Central Excise 
                & Service Tax, Kolhapur                               ..Appellant 

                                   v/s.

                Bahar Agro Chem & Feeds Pvt. Ltd.                     ..Respondents


                Mr.Pradeep Jetly a/w. Mr. Jitendra Mishra for the Appellant.
                Mr.Yogesh Patki a/w. Mr. A.S.Ramesan i/b.A.S.Ramesan Advocates for 
                the Respondent/State.

                  
                                                     CORAM :  ANOOP V. MOHTA &
                                                                    SMT. ANUJA PRABHUDESSAI, JJ.

DATED : JULY 11, 2017.

ORAL JUDGMENT (PER ANOOP V. MOHTA, J.) :

1. Rule.

2. This appeal is under Section 35 of the Central Excise Act, (CF

Act) 1944. By consent, heard finally at the stage of admission.

3. A preliminary objection is raised to the maintainability of this

appeal under Section 35G (CF Act) against the impugned Order as ut

deals with the aspect of "Rate of Duty" and "Value of Goods". The

salgaonkar 1 of 3

904 CEXA 135-15.doc

respondents have already preferred Special Leave Petition in the

Supreme Court against the same order/issues and the same is

admitted. The "Rate of Duty" and "Value of Goods", the basic

issues, are pending in the Supreme Court.

4. The plain reading of Section 35(G) makes the position very

clear. Section 35(G) reads thus:

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. ....

(6) The High Court may determine any issue which -

(a) has not been determined by the Appellate Tribunal; or

(b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-Section (1).

5. It is clear from the provisions itself that no appeal lies to the

High Court from the Order passed by the Appellate Tribunal being

the order relating among other things, to the determination of any

salgaonkar 2 of 3

904 CEXA 135-15.doc

question having a relation to the rate of duty of excise and/or to the

value of goods for the purposes of amendment.

6. The submission that there are other issues also involved,

including an extension of limitation period, in view of the clear

provisions referred above and as the Special Leave Petition against

the order/issue is pending in the Supreme Court, we are inclined to

accept the preliminary objection raised by the respondents about

maintainability of this appeal in the High Court.

7. Therefore, by keeping all points open, the present appeal is

disposed of as not maintainable, with liberty to the appellants to

approach the available appellate forum against the impugned

order/issue, if so instructed.

8. The appeal is accordingly disposed of with no order as to costs.

              (ANUJA PRABHUDESSAI, J.)                           (ANOOP V. MOHTA, J.)




salgaonkar                                                                                         3 of 3