The Commissioner Of Cgst And ... vs Bharat Bijlee Ltd
2018 Latest Caselaw 1188 Bom

                             Uday S. Jagtap                                                   332-18-NMA-12=.doc



                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         ORDINARY ORIGINAL CIVIL JURISDICTION
                                             NOTICE OF MOTION NO. 332 OF 2018
                                                           IN
                                         CENTRAL EXCISE APPEAL (L) NO. 56 OF 2018
                                                             
                             The Commissioner of CGST &K Central Excise
                             Navi Mumbai Commissionerate                 .. Appellant 
                                   v/s. 
                             M/s. Bharat Bijlee Ltd.                     ..Respondent

Mr. Bhuvan Thakker I/b Malvi Ranchoddas & Co. for the appellant Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for the applicant

CORAM : M.S. SANKLECHA & RIYAZ I. CHAGLA, J.J.

DATED : 14 th SEPTEMBER, 2018.

P.C.

1. This motion has been taken out for condonation of 11 days delay

in filing the appeal arising under the Central Excise Act, 1944 (Act)

from the order dated 17th August, 2017 passed by the Customs, Excise

and Service Tax Tribunal (Tribunal).

2. Mr. Thakker, learned Counsel appearing for the respondent

tenders an affidavit of Mr. Yogendra Agarwal, the Chief Financial

Officer of the respondent herein. In the affidavit, it is stated that the

impugned order dated 17th August, 2017 of the Tribunal has been

challenged by the respondent before the Hon'ble Supreme Court being

Digitally signed Uday by Uday Shivaji Jagtap Shivaji Date:

          2018.09.18                                                                                          1 of 3
Jagtap    11:19:56
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 Uday S. Jagtap                                                332-18-NMA-12=.doc

Civil Appeal No.1321 of 2018 and the same has also been admitted on

22nd January, 2018. In the above view, it is submitted by Mr. Thakker

that this appeal would not be maintainable before this Court.

3. Mr. Jetly, learned Counsel appearing for the applicant presses the

appeal on the ground that the issue being raised in the accompanying

appeal is with regard to the impugned order of the Tribunal not

following the earlier directions of the Hon'ble Supreme Court.

Therefore, according to him this appeal would be maintainable before

this Court.

4. We note that as impugned order is the subject matter of appeal

which has been admitted by the Hon'ble Supreme Court. This could

only be on the Hon'ble Supreme Court being satisfied that the issue

arising in the appeal is with regard rate of duty or valution i.e.

pertaining to orders appealable under the Act before it. Moreover, we

have already held in APM Terminals (I) Pvt. Ltd. Vs. Commissioner

of Central Excise (C.E. Appeal N.124 of 2017) dated 6 th September,

2018 and in Commissioner of Central Excise Vs. Eon Hinjewadi

Infrastructure (P) Ltd. (Central Excise Appeal No.61 of 2017) decided

on 3rd September, 2018 that the jurisdiction of this Court to entertain

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appeals under Section 35G of the Act is determined by the order passed

by the Tribunal and not on the basis of the question framed by the

appellant. Thus, this Court does not have jurisdiction to entertain the

appeal. Therefore, it would be appropriate if the applicants also file

their appeal from the impugned order to the Hon'ble Supreme Court, if

they are so advised. This would also avoid multiplicity of the

proceedings.

5. In view of the above, we find merit in the submission made by

Mr. Thakker. Therefore, the motion is dismissed as the impugned

order is already a subject matter for consideration in an appeal before

the Hon'ble Supreme Court.

(RIYAZ I. CHAGLA, J.) (M.S. SANKLECHA, J.)

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