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Judgment
M.R. Shah, J. (Oral)—Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 12th May, 2015 passed in Appeal Nos. E/12386 & 12387/2014 [2015 (325) E.L.T. A51 (Tribunal)], the Revenue has preferred the present tax appeals with the following proposed questions of law :
(i) "Whether in the facts and circumstances of the case, the learned Tribunal has committed an error in drawing adverse inference because of the discrepancy found in the data entry recorded in the pen drive in respect of all the 31 appeals; including the appeal of the respondent herein, though it is essentially restricted only to two (2) appeals which were preferred by (a) M/s. Well Suit Glass & Ceramics Private Limited (E/13720/2014); and (b) M/s. Vishva Glass & Ceramics Private Limited (E/534/2011); so far as the clandestine clearance of frit. by the respondent is concerned?"
(ii) "Whether in the facts and circumstances of the case, the learned Tribunal is justified in the eye of law in holding that as per Section 9D of the Central Excise Act, 1944, the respondent is entitled to have the opportunity of cross-examination of 12 buyers, who have provided the documents/records maintained by them and nearly explained the entries made therein, in their statements recorded under Section 14 of the said Act?"
(iii) "Whether in the facts and circumstances of the case, the learned Tribunal has erred in law in holding that the Revenue has failed to establish the undervaluation of the frit. as well as the clandestine clearance of frit. by the respondent herein during the relevant period, relying on its own decision in the matter of (i) M/s. Belgium Glass & Ceramics Private Limited; and (ii) M/s. Well Suit Glass & Ceramics Limited [2014 (304) E.L.T. 618 (Tri.-Ahmd.)]?"
(iv) "Whether in the facts and circumstances of the case, the respondent was entitled to avail the benefit of SSI exemption as per the Notification No. 8/2003-C.E., dated 1-3-2003 during the relevant period?"
(v) "Whether penalty under Rule 26 of C.E. Rules, imposed upon Shri P.N. Patel, Partner of M/s. Zirconia Cera-Tech Glaze, requires to be quashed and set aside?"
A preliminary objection is raised by Shri Vikram Nankani, learned counsel appearing on behalf of the respondent with respect to maintainability of the present appeals before this High Court. It is vehemently submitted by Shri Nankani, learned counsel for the respondent that as one of the issue/question involved in the present tax appeals is with respect to valuation, in view of the bar under Section 35G of the Central Excise Act, the appeal before this Court shall not be maintainable. In support of the above submission, he has relied upon Section 35G of the Central Excise Act as well as two decisions of Division Bench of this Court viz., in the case of Commissioner v. Kich Industries, 2014 (305) E.L.T. 107 (Guj.) as well as in case of Ruchi Soya Industries Limited v. Union of India, 2014 (307) E.L.T. 852 (Guj.). Making above submissions and relying on the above decisions, it is requested not to entertain the present tax appeals.
Shri Dhaval D. Vyas, learned advocate appearing on behalf of the Revenue has submitted that as such, earlier against the very common judgment and order passed by the learned CESTAT, the Revenue approached Hon''ble Supreme Court under Section 35L of the Central Excise Act, however, the same came to be withdrawn by the Revenue with a liberty to prefer appeals before the High Court. It is submitted that the Hon''ble Supreme Court permitted the Revenue to withdraw the said appeals with above liberty and thereafter when the Revenue has preferred the present appeals, the same may be entertained by this Court. It is further submitted that by learned advocate Shri Dhaval D. Vyas that even apart from the issue/question with respect to the valuation of rate of duty, there are other questions also which arise in the present tax appeals. It is submitted that therefore, even the appeals qua those issues/questions [other than the question of valuation of goods/rate of excise duty] is required to be considered by this Court under Section 35G of the Central Excise Act.
Heard learned advocate for the respective parties. On the preliminary objection raised by the learned counsel for the respondent, more particularly with respect to maintainability/entertainability of the present appeals before this Court under Section 35G of the Central Excise Act.
At the outset, it is required to be noted and it is not in dispute that one of the question/issue in the present tax appeals would be with respect to valuation/rate of duty. It is true that there are other questions/issues which arise in the present tax appeals also [other than the issue/question with respect to valuation/rate of duty]. However, on plain reading of Section 35G of the Central Excise Act, an appeal shall lie to the High Court from the order passed in appeal by the Appellate Tribunal [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 the purpose of assessment]. Therefore, on plain reading of Section 35G of the Act, if amongst other things, question with respect to 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 arise, an appeal shall not lie to the High Court. In such a situation, the appeal shall lie before the Hon''ble Supreme Court, in light of provision of Section 35L of the Central Excise Act. Therefore, submission made by Shri D.D. Vyas, learned advocate appearing on behalf of the Revenue that as other issues/questions arise in the present appeal [other than the issue/question with respect to rate of duty/value of goods also], the present appeals before this Court under Section 35G of the Act be entertained, cannot be accepted. If such an interpretation is accepted, in that case, there shall be two appeals before two different forums against the very/one judgment and order passed by the Tribunal. Under the circumstances, considering Section 35G of the Central Excise Act when it is not in dispute that one of the issue/question involved in the present tax appeals is also with respect to rate of duty/value of goods, among other things, the present appeals before this Court under Section 35G of the Central Excise Act against the impugned common judgment and order passed by the Tribunal shall not be maintainable.
Now, so far as submission of Mr. Vyas, learned counsel for the Revenue that earlier the Department did prefer appeals before the Hon''ble Supreme Court against the very impugned common judgment and order passed by the learned Tribunal, which were under Section 35 of the Central Excise Act, and thereafter, the Department withdrew the said appeals with a liberty to file appeals before this Court under Section 35G of the Central Excise Act, and the Hon''ble Supreme Court permitted the Department to withdrew the appeals with the above liberty, and thereafter the present appeals are preferred, these appeals are required to be decided on merits is concerned, on reading the order passed by the Hon''ble Supreme Court, while dismissing the appeals as withdrawn, it is required to be noted that the Hon''ble Supreme Court has not opined whether appeals before this Court shall be maintainable or not. Learned counsel for the Revenue sought permission before the Hon''ble Supreme Court to withdraw the appeals, as they propose to prefer it before this Court and the Apex Court permitted the Department to withdraw the said appeals, however, with a liberty; as prayed for. However, it cannot be said that Hon''ble Supreme Court had opined and/or decided anything on merits with respect to maintainability and/or entertainability of the present appeals before this Court under Section 35G of the Central Excise Act.
Under the circumstances, despite having found that the present appeals under Section 35G of the Act before this Court shall not be maintainable, the present appeals are not required to be entertained and/or held to be maintainable merely because the Department earlier before the Hon''ble Supreme Court withdrew it with a liberty to prefer appeals before this Court, more particularly when the question of maintainability of appeals before this Court has not been addressed before the Hon''ble Supreme Court and as observed herein above, there is no finding and/or decision of the Hon''ble Supreme Court with respect to maintainability and/or entertainability of these appeals before this Court against the impugned common judgment and order passed by the learned Tribunal under Section 35G of the Central Excise Act.
In view of the above and for the reasons stated herein above, the preliminary objection raised by Shri Vikram Nankani, learned counsel appearing on behalf of the respondent is hereby accepted and it is held that the present appeals against the impugned common judgment and order dated 12th May, 2015 passed in Appeal Nos. E/12386 & 12387/2014 under Section 35G of the Central Excise Act shall not be maintainable. It will be open for the Department to adopt appropriate recourse to law and approach appropriate forum; as may be available under the provisions of the Central Excise Act. With this, both the appeals are dismissed as not maintainable, however, without further entering into the merits of the case.