HIGH COURT OF SIKKIM
Record of Proceedings
Tax App. No. 02/2020
THE COMMISSIONER OF CENTRAL
EXCISE, SILIGURI APPELLANT (S)
VERSUS
M/S ZYDUS HEALTHCARE RESPONDENT (S)
For Appellant : Mr. B.K. Gupta, Advocate
For Respondent : Mr. Rahul Tangri, Advocate
Ms. Gita Bista, Advocate
Date: 05/04/2021
CORAM :
HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, J.
...
O R D E R (O R A L)
PER J.K. MAHESHWARI, CJ
This appeal arising out of order dated 24.10.2019 passed in Excise Appeal
No. 75003 of 2017 with Excise Appeal No. 75004 of 2017 by the Customs,
Excise & Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata (for
short, CESTAT) is filed by the Appellant.
2. Learned counsel appearing on behalf of the Respondent has raised
preliminary objections inter alia contending that the value as involved in the
present case is of Rs.63.00 lakhs, however, as per National Litigation Policy
dated 22.08.2019, if value of any appeal is less than Rupees One Crore, the
appeal to the High Court is not maintainable. Second objection is raised that the
present matter pertains to refund of Education Cess and Higher Education Cess
which were paid along with Excise Duty, however, the said subject matter
covers Section 35L and not under Section 35G of the Central Excise Act, 1944
(for short, the Act), therefore, this appeal is not maintainable before the High
Court.
HIGH COURT OF SIKKIM Record of Proceedings
3. On the other hand, learned counsel appearing on behalf of the Appellant-
Revenue has made an attempt to satisfy this Court that the appeal under
Section 35G of the Act is maintainable because the order passed by the CESTAT
is illegal and passed prior to the subsequent judgment of Supreme Court in the
case of M/s Unicorn Industries vs. Union of India and Others in Civil
Appeal No. 9237 of 2019 arising out of S.L.P (C) No.21622 of 2012, on
06.12.2019, therefore, this appeal is maintainable.
4. After hearing the learned counsel for both the parties, we find much
substance in the preliminary objections as raised by the learned counsel
representing the Respondent.
5. At present learned counsel representing the Appellant-Revenue facing
difficulty regarding agreed proposal made before the CESTAT of applicability of
the judgment of the SRD Nutrients Private Ltd. Vs.CCE, reported in 2017
(TIOL) 416 (S.C.) and relying on the same the order was passed. Later the
said judgment has been modified by the Hon'ble Apex Court in the case of M/s
Unicorn Industries vs. Union of India and Others (supra). However, the
counsel for the Appellant-Revenue requests for filing a petition for rectification
before the CESTAT, the said prayer appears to be justifiable.
6. In view of the foregoing, we dispose of this appeal, as requested by the
counsel representing the Appellant-Revenue with a liberty to take appropriate
recourse of law for rectification of the order of the CESTAT.
Judge Chief Justice jk/avi
