Central Excise - Appeal to High Court or Supreme Court?
THIS is a major dilemma faced by many Central Excise/Customs/Service Tax Commissioners when they don't accept an order of the Tribunal and decide to appeal.
Should they go to the High Court or Supreme Court?
If they decide to go to the Supreme Court, they have to send detailed reports to the Board within 15 days and ensure that the appeal is filed within two months. If they want to go to the High Court, they are free to do so and they have six months time. So normally they choose this easy route.
But there is a law for this:
Section 35G of the Central Excise Act states:
SECTION 35G. Appeal to High Court. -
(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 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 purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.
So if Classification or Valuation is one of the issues in an order, the appeal is not maintainable in the High Court; it has to go to the Supreme Court.Routinely appeals get filed in the High Courts and routinely they get dismissed. In a recent judgement, the Delhi High Court ruled that jurisdiction of the High Court as an appellate forum would depend upon the issues adjudicated and decided in the order in original. The High Court dismissed two revenue appeals as one of the issues was 'classification'.
CBEC had in Circular F.No.390/Misc./100/2010-JC dated 22nd September, 2011 observed,
" It has come to the notice of the Board that field formations have filed appeals in the jurisdictional High Courts in matters relating either to determination of rate of duty or value of the goods which ought to have been filed in the Supreme Court. Such appeals get dismissed by the High Courts on the ground of jurisdiction alone, invariably after pending for a long time. Civil Appeals filed in the Supreme Court in such cases have frequently been dismissed on the ground of limitation. It may also be noted that the time period for filing Civil Appeal is 60 days from the date of receipt of the Tribunal order in the Commissionerate.
The Commissioners are, therefore, directed to examine the issue involved in the dispute very carefully for deciding the appellate forum. The jurisdictional Chief Commissioners, while giving concurrence to the proposal for filing appeal, are expected to ensure that appeal is being filed in the correct forum in order to avoid needless litigation being pursued in the wrong forum and consequent loss of revenue."
And these appeals were filed long after the Circular was issued!
Please see and