Case Law Details
Commissioner of CGST & Central Excise Vs Hindustan Petroleum Corporation Ltd. (Bombay High Court)
In our view, any decision on the issue whether the revenue could have invoked the extended period of limitation for recovery of the excise duty, or would not have any bearing or impact on the rate of duty of excise or to the value of goods for the purposes of assessment. Such determination on the issue of limitation would also have no bearing on the issue of determination of taxability or excisability of goods for the purposes of assessment. In our view, the issue of limitation in this case being purely question of fact or atmost mixed question of fact and law disclosed in decision of the Tribunal would thus not be a decision in rem but has to be in personam. No appeal against the order of the Tribunal in this situation would lie before the Hon’ble Supreme Court under Section 35L of the said Act.
A perusal of Section 35G of the said Act would clearly indicate that all appeal shall lie to High Court from every order passed in appeal by the Appellate Tribunal on or after 1st day of July, 2003 subject to exception expressly provided in the bracket, to Section 35G, same is providing exclusion of the orders which cannot be challenged before High Court under the said provisions.
Upon careful perusal of the said exclusion to Sections 35G and 35L minutely, it can be noticed that expression ‘determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment’ prescribed under Sections 130 and 130E of the Customs Act is in pari-materia to Sections 35G and 35L of the said Central Excise Act. Interpretation of both these provisions i.e. Sections 130 and 130E of the said Customs Act fell for consideration before the Hon’ble Supreme Court in case of Navin Chemicals Mfg. & Trading Co. Ltd. v/s. Collector of Customs, 1993 (68) E.L.T. 3 (S.C.) wherein it is held that the phrase ‘relation to’ is ordinarily, of wide import but, in the context of its use in the reading Section 129C, must be read to mean a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. The Hon’ble Supreme Court held that the questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the expression ‘a dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relating directly and proximately to the rate of duty applicable thereto for purposes of assessment’. It is held that the statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods.
In the facts of this case, order of Tribunal holding that the revenue could not have invoked the extended period of limitation for recovery of excise duty from the respondent-assessee purely based on the finding of facts inter-se and would not fall within the purview of public importance falling under Section 35L of the said Act. In this case, it is not the case of the respondent-assessee that the issue of limitation decided by the Tribunal would involve the question of any general/public importance.
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