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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SUDHANSHU DHULIA, MANASH RANJAN PATHAK, JJ.
Commissioner of Central Excise and Service Tax, Guwahati – Appellant
Versus
Indian Oil Corporation Limited – Respondent
C Ex. APP. No. 3 of 2020
Decided On : 11-08-2021
Central Excise Act, 1944 - Section 35G - Customs Act, 1962 - Sections 129C(4), 129D(5), 130(1) and 130E(b) - Central Excises and Sait Act, 1944 - Sections 35D(3), 35E(5), 35G(1) and 35(b) - High Speed Diesel - Circular - Indian Oil Corporation - Appeal filed by Revenue - Assessee before this Court is Indian Oil Corporation - Superior Kerosene Oil, as applicable at relevant point of time - Argument of assessee was that duty has to be paid at time of removal of goods from gate and admittedly at time when goods were removed from the gate - Matter was later taken to Tribunal by the assessee - Assessee holding that duty was liable to be paid only as SKO and not payable as on MS or HSD and as far as applicability of Circulate was concerned - Court from an order of Appellate Tribunal only if it is an order which is not relating, among other things determination of any question having a relation to the rate of duty of excise or to value of goods for purposes of assessment.
Finding of the Court:
Root of present dispute is as to at what rate the duty was liable to be paid by the assessee, i.e. whether it was a duty liable to be paid on SKO or on MS and HSD - Appeal will not lie before High Court but before Supreme Court if “among other things” matter relates to rate of duty of excise. Therefore, even if one of the many issues relate to the rate of duty, appeal would still lie before the Hon'ble Apex Court and not before the High Court - dispute here in any case falls in a very limited area as to determination of the rate of duty to be paid by the assessee matter lies within exclusive jurisdiction of the Hon'ble Apex Court under Section 35L.
Result: Ordered Accordingly.
ORDER :
1. The matter is taken up through video conferencing.
2. Heard Mr. S.C. Keyal, learned counsel for the appellant. Also heard Dr. A. Saraf, learned senior counsel for the respondent.
3. This is an appeal filed by the Revenue under Section 35G of the Central Excise Act, 1944 (for short “the Act”). The assessee before this Court is the Indian Oil Corporation, which has paid an excise duty on SKO, which is Superior Kerosene Oil, as applicable at the relevant point of time. The Revenue, on the other hand, relied upon a Circular dated 22.04.2002 and its objection was that since SKO is mixed with Motor Spirit (MS) or High Speed Diesel (HSD), it will have to pay the duty, which is applicable on MS and HSD, as stipulated in the Circular dated 22.04.2002. Admittedly, the rate of duty on MS and HSD is higher than what it is on SKO.
4. The argument of the assessee was that the duty has to be paid at the time of removal of the goods from the gate and admittedly at the time when the goods were removed from the gate, even though from the pipeline, it was in the form of SKO and not MS or HSD. This, however, did not find favour of with the authority and thereafter, the matter was later taken to the Tribunal by the assessee, which gave an order in favour of the assessee holding that the duty was liable to be paid only as SKO and not payable as on MS or HSD and as far as the applicability of Circulate was concerned, the Tribunal was of the view that it is the law which would be applicable and the Circular, which is on the face of it against the law cannot be applied in the present case. Aggrieved by the order of the Tribunal, the Revenue has filed the present appeal under Section 35G of the Act. Sub-Section (1) of Section 35G as applicable as of now reads as under:-
(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 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.”
5. A preliminary objection has thus been raised by Dr. A. Saraf, learned senior counsel appearing for the assessee who would argued that an appeal shall lie to a High Court from an order of the Appellate Tribunal only if it is an order which is not 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.” In case the dispute relates to rate of duty for the purposes of assessment, then an appeal would lie before the Supreme Court under Section 35L [Appeal to Supreme Court:
(a)...........
(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] of the Act.
6. The two decisions primarily relied upon by the learned senior counsel for the assessee are Sterlite Optical Technologies Limited vs. Commissioner of C.Ex. Aurangabad, 2007 SCC Online Bom 1435 and Commissioner of Customs and Central Excise, Jammu vs. Bharat Box Factory Limited, 2008 SCC Online J&K 107. The case which was before the Jammu and Kashmir High Court was an appeal under Section 35 of the Act filed by the Revenue and a similar objection, as has been raised before this Court, was raised on behalf of the assessee regarding maintainability of the appeal in view of the exclusive jurisdiction on these matters of the Hon’ble Apex Court. Relying upon the earlier judgment of the Bombay High Court, which in turn relied upon the judgment of the Supreme Court, the Jammu and Kashmir High Court in Paragraph 5 to 10 gave its de
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