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222 EXCISE LAW TIMES [ Vol. 372

REPRESENTED BY : S/Shri Swapnil Bangur with Jitendra B. Mishra and
V. Sridharan, Senior Counsel, for the Appellant.
S/Shri R.V. Desai, Senior Counsel with Rohit
Pardeshi, N.S. Patel and Stephan Ambrose, for the
Respondent.
[Judgment per : M.S. Sanklecha, J.]. - 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 [2018 (362) E.L.T. 763 (Bom.)] 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”) [2014 (301)
E.L.T. 91 (Tri. - Mum.)]. The Division Bench has referred to the Full Bench, the
following questions of law for consideration :-
“(a) Whether the question of taxability or excisability of goods is an is-
sue 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 or-
der 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
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