Dismissed

The Commissioner of Central Excise Mumbai -Ii v. B.D. Industries

Bombay HC18 Feb 2014CEXA/72/2011

Case brief

AI extract

What is this about?

The High Court held that an appeal under Section 35G of the Central Excise Act was not maintainable before it because the controversy regarding the rate of duty under Notification No.8/2003 was amenable to the appellate jurisdiction of the Supreme Court under Section 35L of the Act.

What did the court decide?

The appeal was dismissed as not maintainable under Section 35G of the Act.

The Commissioner of Central Excise Mumbai -Ii Vs B.D… — Customs and Excise | Bombay HC (2014)

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1 of 3 CEXA.72.2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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CENTRAL EXCISE APPEAL NO.72 OF 2011

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Commissioner of Central Excise, Mumbai Appellant versus M/s.B.D.Industries Respondent

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Mr.Pradeep S. Jetly with Mr.S.D.Bhosale for Appellant. Mr.R.V.Shetty i/by A.D.Shetty and Rita Joshi for Respondent.

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CORAM : MOHIT S. SHAH, C.J. AND M.S.SANKLECHA, J.

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DATE : 18 February 2014

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PC :

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In this appeal under Section 35G of the Central Excise Act, 1944 (the Act'), the Appellant challenges the order dated 1 March 2010 of the Customs, Excise and Service Tax Appellate Tribunal, Mumbai (the Tribunal'). On 1 February 2012, the appeal was admitted on the following substantial question of law :

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“Whether the CESTAT was correct in setting aside orders of the Commissioner Appeal when respondent availed both SSI Exemption as well as Cenvat Credit against the manufactured goods which are against the Central Excise Act, 1944?”

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The issue arising in this appeal is with regard to interpretation of Notification No.8/2003 dated 1 March 2003. The counsel for the

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2 of 3 CEXA.72.2011

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Respondent submits that the issue relates to rate of duty and, therefore, the appeal is not maintainable in this Court.

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The learned counsel for the Appellant-Revenue relies upon the decision of Supreme Court in Commissioner of Central Excise, Ahmedabad Vs. Ramesh Food Products {2004(174)-E.L.T.-310 (SC)} , whereas the learned counsel for the Respondent-Assessee relies upon the order dated 22 August 2006 of the Tribunal, Chennai in Nebulae Health Care Limited Vs. Commissioner of Customs, Chennai {2007(209)-ELT-125 (Tri-Chennai)} .

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It appears that against the aforesaid order of Tribunal in Nebulae Health Care Limited (supra), the Revenue has gone in appeal before the Supreme Court under Section 35L(b) of the Act. Similarly the decision of Supreme Court in Ramesh Food Products (supra) was rendered in an appeal filed before it from the order of Tribunal under Section 35L of the Act.

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It does appear that the controversy which is the subject matter of this appeal is amenable to the appellate jurisdiction of Supreme Court under Section 35L of the Act, which reads as under :

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“35L. Appeal to the Supreme Court. An appeal shall lie to the Supreme Court from -

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(a) any judgment of the High Court delivered -

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(i) In an appeal made under section 35G; or

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3 of 3 CEXA.72.2011

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(ii) On a reference made under section 35G by the Appellate Tribunal before the first day of July,2003;

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(iii) On a reference made under section 35H, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or

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(b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal 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.”

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In view of the above, this appeal is dismissed as not maintainable under Section 35G of the Act before this Court. The appeal stands dismissed.

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(CHIEF JUSTICE)

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(M.S.SANKLECHA, J.)

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MST

The Commissioner of Central Excise Mumbai -Ii v. B.D. Industries

Case brief

What is this about?

What did the court decide?

The Commissioner of Central Excise Mumbai -Ii v. B.D. Industries

Case brief

What is this about?

What did the court decide?

What the court decided

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