Page 189 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] COMMISSIONER CENTRAL EXCISE, MUMBAI-V v. RELIANCE MEDIA WORKS LTD. 235

while passing the bill and making it into an Act that this provision
was intended to be clarificatory in nature. Therefore, insertion of
sub-section (2) to Section 35L of the Act is retrospective in nature
and not prospective.
(c) It was next contended that an appeal to Hon’ble Supreme Court
from the orders of the Tribunal in respect of excisability/taxability
is a new class/category of orders. Therefore, it has to be prospec-
tive. This submission cannot be accepted as consistently the Courts
have held that appeals in respect of excisability/taxability are ap-
pealable to the Hon’ble Supreme Court even before insertion of sub-
section (2) to Section 35L of the Act. Moreover, on a interpretation of
the words “assessment of duty” we have already held in the exclu-
sion provided in Section 35G(1) of the Act, would also cover the is-
sue of excisability/taxability being applicable to the Hon’ble Su-
preme Court. Therefore, it is not a new category or class of orders of
the Tribunal for which special provision is made for the first time by
virtue of the amendment.
(d) Lastly, it was submitted that the amendment takes away a right of
appeal available to the parties. Before the amendment, the parties,
be it the assessee or the Revenue, if aggrieved by the order of the
Tribunal on issue of taxability/excisability, could file an appeal to
the High Court. From the order of the High Court, the parties
would have had one more right of appeal before the Hon’ble Su-
preme Court in terms of Section 35L(1) and (b) of the Act. However,
the amendment now takes away one right of appeal and, therefore,
it cannot be held to be retrospective. In support of the above, the
appellant placed reliance upon the decision of the Supreme Court in
Videocon International Ltd. (supra). This submission does not merit
acceptance for the reason that we have already held that at all times
even prior to the insertion of sub-section (2) to Section 35L of the
Act, an appeal to the High Court is not maintainable from an order
of the Tribunal dealing with excisability/taxability but would only
lie to the Hon’ble Supreme Court. Thus, there is no taking away of
any right of appeal to the High Court by virtue of the amendment.
Such a right never existed at all on the plain reading of Sections
35G(1) and 35L(1)(b) of the Act, as considered earlier.
Thus, question No. (B) as referred is answered as under :-
The amendment made to Section 35L of the Act by insertion of sub-
section (2) therein is clarificatory and retrospective in nature.
8. Having answered the questions as above, it must be noted that the
questions for our consideration have been referred to in the order dated 6th Sep-
tember, 2018 by the Division Bench of this Court as it found an apparent conflict
between its earlier decisions in Global Vectra Helicorp Ltd. (supra) and Bajaj Auto
Ltd. (supra)
(a) This Court in Global Vectra Helicorp Ltd. (supra) entertained an ap-
peal from the order of the Tribunal holding that the question of in-
terpretation of sub-section (zzzzj) of Section 65(105) of the Act, is
not an issue of rate of duty of service tax and, therefore, appealable
to the High Court and not the Hon’ble Supreme Court. This on the
EXCISE LAW TIMES  15th April 2020  205