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226 EXCISE LAW TIMES [ Vol. 372

tion thereof, it is submitted that the orders of the Tribunal re-
lating to issue of taxability and excisability were to be enter-
tained only by the High Court.
(II) On the other hand, Mr. Desai, Learned Counsel appearing for the
respondent submits that even prior to 6th August, 2014 when sub-
section (2) to Section 35L of the Act, was introduced, appeals under
Section 35G(1) r/w Section 35L(1) of the Act, were appealable only
to the Hon’ble Supreme Court and in support made the following
submissions :-
(a) Consistently various Courts in the country have held in the
context of Section 35G(1) r/w Section 35L(1) of the Act, [even
before the insertion of sub-section (2) of Section 35L of the
Act] that the issue of taxability of services and excisability of
goods is a rate of duty issue for purpose of assessment and
appealable only to the Hon’ble Supreme Court.
(b) In support, reliance was placed upon the following decisions
of various High Courts holding that issue of excisability is
not appealable to the High Court:-
(1) Commissioner of Central Excise v. Pawan Kumar Bansal,
2015 (315) E.L.T. 529, (Del.)
(2) Commissioner of Central Excise, Hyderabad-IV v.
Shriram Refrigeration Industries, 2009 (240) E.L.T. 201
(A.P), [the Hon’ble Supreme Court has admitted the
appeal against this order on 11th March, 2011 report-
ed in 2018 (362) E.L.T. A108]
(3) Thejo Engineering Services Pvt. Ltd. v. Commissioner of
Central Excise, Chennai, 2017 (349) E.L.T. 113. (Mad.)
(4) Commissioner of Central Excise v. Kerala State Beverages,
2014 (300) E.L.T. 217 (Kerala)
(5) Commissioner of Central Excise & Customs v. Swiss
Glass Coat Equipments Ltd. - 2011 (273) E.L.T. 364
(Guj.)
(6) Tata Power Company Ltd. v. Commissioner of Customs,
Mangalore, 2017 (345) E.L.T. 94 (Karnataka),
(7) Commissioner of Central Excise, Mangalore v. Mangalore
Refineries & Petrochemicals Ltd. - 2011 (270) E.L.T. 49
(8) Indian Strips v. Commissioner - 2014 (302) E.L.T. A62
(Guj.)
(c) The insertion of sub-section (2) to Section 35L of the Act,
w.e.f. 6th August, 2014 is only clarificatory. It makes explicit
what was implicit in Section 35G(1) and Section 35L(1) of the
Act.
(III) (a) We have considered the rival submissions. The appeals from
the orders of the Tribunal under the Finance Act, 1994 and the Act
prior to the introduction of sub-section (2) to Section 35L of the Act
were governed by Sections 35G(1) and 35L(1) of the Act. In terms of
Section 35G(1) of the Act, every appeal from order of the Tribunal
passed after 1st July, 2003 giving rise to a substantial question of
law would be to the High Court except orders of the Tribunal relat-
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