Commissioner of Central Excise, Thane - Ii, Mumbai v. M/S Durian Industries Pvt. Ltd. and 25 Ors.

Bombay HC11 Apr 2019CEXA/243/2006

Case brief

AI extract

What is this about?

The High Court held it lacked jurisdiction to entertain an appeal under Central Excise Act challenges regarding under-valuation (Section 35G) because such appeals must lie with the Supreme Court (Section 35L). Despite acknowledging the appeal was wrongly admitted years ago, the court dismissed it without disposal and directed the appellant to file appropriate proceedings before the Supreme Court.

What did the court decide?

Return of Memorandum of Appeal to appellant-revenue to file appropriate proceedings before the Supreme Court.

Commissioner of Central Excise, Thane - Ii, Mumbai Vs M/S… — Customs and Excise | Bombay HC (2019)

cexa243.doc

ssp

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

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 CENTRAL EXCISE APPEAL NO.243 OF 2006

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Commissioner of Central
Excise, Thane-II

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...Appellant

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vs.
M/s.Durian Industries
Pvt.Ltd. And others...Respondents

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Mr.P.S.Cardozo for the appellant

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Mr.Palash H. Dharmadhikari I/b Mr.S.M.Shah for the
respondents

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CORAM : A.S.OKA, &
 M.S.SANKLECHA,JJ.
 DATE : APRIL 11, 2019

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P.C.:

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1This appeal under section 35G of the Central
Excise Act,1944 challenges the order dated 14th
December 2005 passed by the Customs, Excise and
Service Tax Appellate Tribunal, West Zonal Bench,
Mumbai (for short`CESTAT').

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2The appeal was admitted on 24th July 2008 on the
following substantial questions of law:

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“(A) Whether on the facts and in the
circumstances of the case, the Tribunal can
ignore the tangible evidence collected by the
department showing the clandestine removal of
goods and under-valuation of goods with the

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cexa243.doc

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intention to evade duty and which is quasi-
criminal in nature?

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(B) Whether on the facts and in the
circumstances of the case, the Tribunal was
justified in allowing the Appeals of the
Respondents and other parties without
considering the judgment laid down by the
Supreme Court in the case of D.Bhoormal that
the Revenue is not supposed to prove its case
with mathematical precision particularly when
overwhelming evidence is produced by the
Revenue in support of its contentions?”

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3On perusal of question (A) above, on the last
occasion, we put it to the Advocate for the
appellant-revenue whether this Appeal would be
maintainable before this Court. This in view of
section 35G of the said Act clearly providing that
an appeal on an issue relating to valuation of goods
for the purposes of assessment is not maintainable
before this Court.

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4On this the learned counsel for the appellant-
revenue took time to take instructions. Thus, the
appeal was adjourned to today.

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5Today, on instructions Ms Cardozo appearing for
the revenue states that though the issue in appeal
does relate to under valuation of the goods, it is
not restricted only to it. She states that the issue

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cexa243.doc

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in this appeal also relates to clandestine removal
of the goods. Therefore, she has been instructed to
press this appeal before this Court.

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6We note that section 35G of the Act
specifically excludes the jurisdiction of the High
Court with regard to the order of the Tribunal
dealing with valuation of the goods for the purposes
of assessment. In fact, Section 35L (1)(b) of the
Act provides for an appeal from the order of the
Tribunal before the Hon'ble Supreme Court in respect
of appeals relating to valuation of goods for the
purpose of assessment. The submission that the
appeal as filed involves not only issue of valuation
for the purposes of assessment but also other issues
warranting an appeal to this Court is not
acceptable. Firstly, Section 35L of the Act itself
provides that an appeal to the Supreme Court would
be maintainable if the order of the Tribunal amongst
other things relates to an issue of valuation. Thus,
even if the order of the Tribunal has dealt with
other issues besides valuation, the appeal has to be
before the Hon'ble Supreme Court. Besides, an order
of the Tribunal cannot be bifurcated. It has to be
challenged as a whole before one forum. Therefore,
this Court does not have jurisdiction to entertain
this appeal.

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7However, considering the fact that this Appeal
was admitted on 24th July 2008, and has been pending
for the last 10 years in this Court, we direct the

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4 cexa243.doc

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return of the Memorandum of Appeal to the
appellant-revenue so as to enable the revenue to
file appropriate proceedings before the Hon'ble
Supreme Court from the impugned order dated 14th
December 2005.

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8Accordingly, Appeal is disposed of in the above
terms.

Commissioner of Central Excise, Thane - Ii, Mumbai v. M/S Durian Industries Pvt. Ltd. and 25 Ors.

Case brief

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Commissioner of Central Excise, Thane - Ii, Mumbai v. M/S Durian Industries Pvt. Ltd. and 25 Ors.

Case brief

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