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2019 Supreme(Bom) 1707
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. Sanklecha, Nitin Jamdar, S.C. Gupte, JJ.
The Commissioner of Central Excise Mumbai- V Commissionerate - Appellant
Versus
M/s. Reliance Media Works Ltd. (Formerly known as M/s. Adlabs Films Ltd.) & Others - Respondent
Central Excise Appeal No. 130 of 2017
Decided On : 06-12-2019
For the Appellant :Swapnil Bangur a/w Jitendra B. Mishra, V. Sridharan, Senior Counsel i/b PDS Legal, Advocates.
For the Respondents:R.V. Desai, Senior Counsel a/w Rohit Pardeshi, N.S. Patel, Stephan Ambrose i/b KRP Legal, Advocates.
Headnote:
Central Excise Act, 1944 - Section 35 – Retired from Service – Claim of compensation - Whether the amendment made to Section 35L of Act on by insertion of sub-section (2) therein, is clarificatory or prospective in nature - Whether the question of taxability or excitability of goods is an issue of rate of duty arising from orders of the Tribunal which are appealable only to the Supreme Court in terms of Section 35L(2) of the Act applies even to appeals from order of the Tribunal passed prior - Division Bench while hearing the appeal from the impugned order dated 12th November, 2013 of the Tribunal holding that certain goods were not marketable (not excisable) and therefore not classifiable under Chapter 37 heading 3707 of the Central Excise Tariff Act, 1985, was confronted with the issue whether such an order is appealable to this Court or the Hon’ble Supreme Court under the Act. The above issue has to be decided on the interpretation of Sections 35G(1) and 35L(1)and(2) of the Act, which are as follows - Section 35G(1) – Appeal to High Court – An Appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after 1st day of July, 2003 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 purposes of assessment – Held, learned Senior Counsel, placed reliance upon the decision of this Court in Great ship (India) Ltd. a decision rendered by the same bench as the one that rendered the decision in Global Ltd. decision in Ltd. (supra) was rendered on consideration of all those decisions including the set of decisions which were not considered by the very Division Bench in Global Ltd - Thus, it is submitted that the bench which passed the order in Global Ltd. (supra) was aware / conscious of the decisions referred to hereinabove while holding that it has jurisdiction to entertain the appeal. This submission overlooks the fact that the decision in Global Vectra Helicorp Ltd. (supra) was rendered decision in Greatship (India) Ltd. (supra) was rendered on 24th March, 2015. Thus, when the order in Global Ltd. (supra) was passed, it cannot be said that the Division Bench was conscious of the aforesaid decisions which appear to have been noticed and considered by it only in its order passed on the next day i.e. 24th March, 2015. Moreover, we are examining the decisions rendered by this Court in Global Vectra Helicorp Ltd. (supra) and the absence of consideration of the binding decisions cannot be filled up by referring to other decisions of the same bench - As against the above, the decision of this Court in Bajaj Auto Ltd. (supra) had held that whether a particular service / good attracts tax / duty or not, would be covered within the ambit of rate of duty for assessment. It further held that sub-Section (2) to Section 35L of the Act was merely clarificatory in nature as it was in the nature of explanation. Therefore, holding that it would apply even to appeals filed from the orders passed by the Tribunal prior to the introduction of Sub-section (2) to Section 35L of the Act – Order accordingly
JUDGMENT :
M.S. Sanklecha, J.
1. This is a reference placed before the Full Bench pursuant to the administrative order passed by the learned Chief Justice in view of the order dated 6th September, 2018 passed by the Division Bench of this Court in statutory appeal under the Central Excise Act, 1944 (Act) from the order dated 12th November, 2013 of the Customs, Excise and Service Tax Appellate Tribunal (“Tribunal”). The Division Bench has referred to the Full Bench, the following questions of law for consideration:-
“(a) Whether the question of taxability or excitability of goods is an issue of rate of duty arising from orders of the Tribunal which are appealable only to the Supreme Court in terms of Section 35L(2) of the Act applies even to appeals from order of the Tribunal passed prior to 6th August, 2014 (i.e. the date of insertion of Sub-section (2) to Section 35L of the Act)?
(b) Whether the amendment made to Section 35L of the Act on 6th August, 2014 by insertion of sub-section (2) therein, is clarificatory or prospective in nature?”
2. The Division Bench while hearing the appeal from the impugned order dated 12th November, 2013 of the Tribunal holding that certain goods were not marketable (not excisable) and therefore not classifiable under Chapter 37 heading 3707 of the Central Excise Tariff Act, 1985, was confronted with the issue whether such an order is appealable to this Court or the Hon’ble Supreme Court under the Act. The above issue has to be decided on the interpretation of Sections 35G(1) and 35L(1)and(2) of the Act, which are as follows:-
“Section 35G(1) – Appeal to High Court – An Appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after 1st day of July, 2003 (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 purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.
(2) to (9) …………
Section 35L (1) – Appeal to the Supreme Court – An appeal shall lie to the Supreme Court from –
(a) any judgment of the High Court delivered –
(i) in an appeal made under section 35G; or
(ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003;
(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 passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or
(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.”
(2) For the purpose of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excitability of goods for the purpose of assessment.”
3. This reference was made because of divergence of views between two earlier Division Benches of this Court in respect of maintainability of appeals before this Court from the orders of the Tribunal deciding taxability of services and excitability of goods in the context of Section 35G(1) and 35L(1) and (2) of the Act. The apparent conflict is between the decisions of this Court in Global Vectra Helicorp Ltd. Vs. C.S.T. Mumbai (CEA No.66 of 2014, decided on 23rd March, 2015) and Bajaj Auto Ltd. Vs. Union of India, (2016) 4 STR 384, decided on 24th June, 2015. According to the referring Division Bench, the decision in Global Vectra Helicorp Ltd. (supra), of this Court held that in view of Sections 35G(1) and 35L(2) of the Act, the question of taxability or excisability of goods for the purpose of assessment would not be an issue of rate of duty. Therefore, an appeal from the order of the Tribunal on the i
