Page 177 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] COMMISSIONER CENTRAL EXCISE, MUMBAI-V v. RELIANCE MEDIA WORKS LTD. 223

(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 pur-
poses 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 taxa-
bility or excisability 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 excisability of goods in the context of Sections 35G(1) and 35L(1) and (2) of
the Act. The apparent conflict is between the decisions of this Court in Global Vec-
tra Helicorp Ltd. v. C.S.T., Mumbai (CEA No. 66 of 2014, decided on 23rd March,
2015) and Bajaj Auto Ltd. v. Union of India, 2016 (4) S.T.R. 384, decided on 24th
June, 2015. According to the referring Division Bench, the decision in Global Vec-
tra 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 pur-
pose of assessment would not be an issue of rate of duty. Therefore, an appeal
from the order of the Tribunal on the issue of taxability/excisability would be
maintainable before this Court and not before the Hon’ble Supreme Court. On
the other hand, in Bajaj Auto Ltd. (supra) this Court held that in view of Sections
35G(1) and 35L(l)(b) of the Act, an appeal on the issue of taxability/excisability
would lie to the Hon’ble Supreme Court and cannot be entertained by this Court.
Further, this Court in Bajaj Auto Ltd. (supra) also held that Section 35L(2) of the
Act, which was inserted into the Act, w.e.f. 6th August, 2014 was only clarificato-
ry in nature. This as the issue of excisability/taxability was a rate of duty issue at
all times.
4. Briefly the facts leading to this reference are as under :-
(a) On 20th November, 2013, the Tribunal passed the impugned order
allowing the respondent’s appeal. This by holding that chemical
preparations for photographic use are not marketable, therefore, not
goods. Thus, not classifiable under Chapter 37 Heading 3707 of the
Central Excise Tariff Act, 1985.
(b) Being aggrieved by order dated 20th November, 2013, the Revenue
filed an appeal under Section 35G(1) of the Act, to this Court.
(c) At the hearing of the above appeal before the Division Bench, the
respondent assessee raised a preliminary objection, viz. that the ap-
peal filed by the Revenue is not maintainable before this Court as it
deals with excisability of goods. In support, it placed reliance upon
the decision of this Court in Bajaj Auto Ltd. (supra) which dealt with
the question of taxability, viz. whether service tax is at all liable on
payment of royalty. The Tribunal had held that the same cannot be
a matter of service and, therefore, outside the scope of Finance Act,
1994. In an appeal filed by the Revenue, the respondent in the ap-
peal, namely, Bajaj Auto Ltd., objected to the jurisdiction of this
Court to entertain an appeal under Section 83 of the Finance Act,
1994 read with Section 35G of the Act. The Court held that the issue
of taxability is a question relating to rate of duty and, therefore, an
EXCISE LAW TIMES  15th April 2020  193