By TIOL News Service

MUMBAI, MAR 31, 2017: THESE are appeals filed by the Revenue.

The facts: The SCN alleged that in the year 1999, the Exim Policy had been amended to provide for domestic tariff area sale upto 50% of the FOB value of exports to be made on applicable duties. Therefore, within the limits of 50% of FOB value of exports as prescribed by the Development Commissioner, SEEPZ, Mumbai and for any clearances exceeding this limit, the full duty was required to be paid under proviso to section 3(1) of the Central Excise Act, 1944. Thus, the allegation is that without complying with the condition of permission by the Development Commissioner, this sale has been effected and consequently, there is no compliance with the proviso to sub-section (1) of section 3 of the Central Excise Act, 1944. The differential duty payable is based on this computation.

An order-in-original was passed confirming the allegations leveled in the SCN. The Tribunal allowed the appeal filed by the assessee and, therefore, Revenue has filed CE appeals before the Bombay High Court.

A preliminary objection was raised by the respondent assessee about the maintainability of the appeals. It is submitted that if the impugned order dated 3rd July, 2014 is read in the backdrop of the show cause notice and the demand raised therein, then, this is not an order falling within the purview of this court's appellate powers. Inasmuch as it pertains to the determination of any question having relation to the rate of duty of excise and, therefore, in terms of sub-section (1) of section 35-L of the CEA, 1944, an appeal against this order would lie to the Supreme Court of India.

The High Court observed -

"It may be that in the appeal, the tribunal dealt with only one of the submissions canvassed on behalf of the appellant before it. However, the appellant assessee may have succeeded on that, but we have to consider the essential issue or the underlying controversy. The underlying controversy clearly points towards a provision, which is attracted. We have seen that this is an issue squarely falling within the wording, namely, "to the determination of any question having relation to the rate of duty of excise". These words in clause (b) of sub-section (1) of section 35-L are of widest amplitude. They cannot be ignored to accept the argument of … on the maintainability of these appeals and namely that the tribunal having decided only a limited issue these appeals are maintainable. We do not think that such bifurcation and of the clear wording of wider amplitude is permissible…"

Holding that the appeals were not maintainable, the same were dismissed.

In passing: Also see 2017-TIOL-552-HC-P&H-CX.

(See 2017-TIOL-628-HC-MUM-CX)