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220 EXCISE LAW TIMES [ Vol. 372

32. In the light of the above, the impugned order is not legally sustain-
able. Consequently, Crl. M.C. is liable to be allowed setting aside the impugned
order.
33. In the result, Crl. M.C. is allowed. Impugned order in Crl. M.P. No.
1106 of 2017 is set aside. Crl. M.P. No. 1106 of 2017 stands dismissed.
_______

2020 (372) E.L.T. 220 (Bom.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. Sanklecha, Nitin Jamdar and S.C. Gupte, JJ.
COMMISSIONER CENTRAL EXCISE, MUMBAI-V
Versus
RELIANCE MEDIA WORKS LTD.
Central Excise Appeal No. 130 of 2017, dated 6-12-2019
1
Appeal to High Court - Maintainability - On question of taxability or
excisability of goods arising from orders of Tribunal - Appeal lies to Supreme
Court - Contention that appeal to Supreme Court from Tribunal’s orders in
respect of excisability/taxability was new class/category of orders and there-
fore, amendment of Section 35L of Central Excise Act, 1944 was to be prospec-
tive, not acceptable - Consistent view of Courts that appeals in respect of ex-
cisability/taxability appealable to Supreme Court even before insertion of
sub-section (2) to Section 35L ibid - No new category or class made for first
time by virtue of amendment - No right of appeal to High Court taken away by
virtue of amendment - Appeals from orders of Tribunal relating to taxability
or excisability passed prior to 6th August, 2014 i.e. date of insertion of sub-
section (2) to Section 35L ibid being a rate of duty issue appealable only to Su-
preme Court and not High Court - Amendment made to Section 35L ibid only
clarificatory and retrospective in nature - Sections 35G and 35L of Central Ex-
cise Act, 1944. - The issue of excisability of goods and taxability of services are appeala-
ble to the Hon’ble Supreme Court even prior to the insertion of sub-section (2) to Section
35L of the Act. The introduction/insertion of sub-Section (2) to Section 35L of the Act,
was done as a matter of abundant caution so as to clarify and make explicit what was
implicit in Sections 35G(1) and 35L(1)(b) of the Act. This was done only to ensure that
the Courts do not waste time examining the issue again and again, when the issue has
already been decided by various Courts upon which the respondent assessee has placed
reliance. In fact, this view is also supported by clause 99 of Notes on Clauses to Finance
(No. 2) Bill, 2014 which introduced sub-section (2) to Section 35L of the Act. It specifi-
cally states that Section 35L is being amended so as to clarify that issue of taxabil-
ity/excisability is covered by the term rate of duty. Thus, what was implicit has been
made explicit. The appeal from the orders of the Tribunal deciding issue of excisabil-
ity/taxability, cannot be entertained by this Court in terms of Sections 35G(1) and
35L(1)(b) of the Act, de hors Section 35L(2) of the Act. The Act, was passed in the same
form as it was introduced along with notes on clauses to the Bill in the Parliament. Thus,
the Parliamentarians were aware while passing the bill and making it into an Act that
this provision was intended to be clarificatory in nature. Therefore, insertion of
________________________________________________________________________
1 On appeal from 2018 (362) E.L.T. 763 (Bom.).
EXCISE LAW TIMES  15th April 2020  190