Page 177 - ELT_15th August 2020_Vol 373_Part 4

2020 ] COMMISSIONER OF CGST & CX, THANE v. MAHINDRA & MAHINDRA LTD. 511

(d) The immense hardship which will be caused to the general body of
litigants, if they have to move the Apex Court, even when the griev-
ance is only on account of breach of natural justice. This even in
matters relating to Valuation and/or rate of duty.
11. From reading of the impugned order of the Tribunal, we find that
the question of valuation though raised in the Appeal before it, was not exam-
ined by the Tribunal. This as the Appeal was allowed on account of Revenue
neutrality making the question of appropriate valuation academic in the present
facts. However, the grievance of the Revenue before us is to the extent that the
Tribunal has not dealt with the issue of valuation though it arose before the Tri-
bunal. Therefore, in our view, the impugned order does relate to the valuation of
goods for the purposes of assessment. This view of ours also finds support from
paragraph 19 of the Hon’ble Supreme Court decision in Steel Authority of India
Ltd. (supra) in the above case, it has been held that where an issue relating to
valuation for purpose of assessment arises and the order is passed in breach of
natural justice, then the Apex Court will admit the Appeal.
12. The submission that if this Appeal is admitted today then at the fi-
nal hearing, if this Court holds that the issue of valuation has to be gone into it,
the only order would be to remand the appeal to the Tribunal to decide the issue
of valuation. This submission proceeds on the basis that the Appellate Authority
while disposing of an Appeal which is in breach of principle of natural justice is
only required to set aside the order and restore it to the Lower Authority for
passing a fresh order. This submission is not based on provision which restricts
the power of an Appellate Authority. Needless to state when there is any breach
of natural justice is alleged, the Appellate Authority would have to examine the
underlying dispute and find out whether on facts any prejudice is caused to the
party or is the remand going to be an empty formality in the facts of this case. It
is open to the Appellate Authority to decide the issue of valuation itself rather
than restore it before the Tribunal. Moreover, one cannot loose sight of the fact
that Section 35G of the Act under which the Appeal is filed, does not bestow ju-
risdiction on us, to entertain an Appeal relating to rate of duty and/or valuation
for the purposes of assessment, in cases of grievance only of breach of natural
justice.
13. The submissions of the Revenue that paragraph 19 of the Apex
Court decision in Steel Authority of India Ltd. (supra) only sets out parameters for
admission and not maintainability is to our mind hair splitting. There is no dis-
pute in view of the self evident position in law i.e. Section 130 and 130E of the
Customs Act, 1962 that an Appeal relating to rate of duty and/or value of goods
for purposes of assessment would only be before the Apex Court. In such cir-
cumstances, the Apex Court after recording that the sine qua non for the admis-
sion of Appeal before it is that the impugned order must relate to the rate of duty
or determination of the value of goods for the purposes of assessment of duty.
Therefore, not dealing with and/or deciding the issue of rate of duty and/or
valuation for purposes of assessment would also be an order relating to rate of
duty and/or valuation of goods. This finds support by its recording that an order
in respect of valuation and/or rate of duty issues is passed in breach of natural
justice, the same would be examined by the Hon’ble Supreme Court in an Ap-
peal before it. In fact, the above decision supports the view that this Appeal is not
EXCISE LAW TIMES  15th August 2020  177