w w w . L a w y e r S e r v i c e s . i n



The Commissioner of Central Excise Mumbai – V Commissionerate v/s M/s. Reliance Media Works Ltd. (Formerly known as M/s. Adlabs Films Ltd.) & Others

    Central Excise Appeal No. 130 of 2017

    Decided On, 06 December 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE M.S. SANKLECHA
    By, THE HONOURABLE MR. JUSTICE NITIN JAMDAR & THE HONOURABLE MR. JUSTICE S.C. GUPTE

    For the Appellant: Swapnil Bangur a/w Jitendra B. Mishra, V. Sridharan, Senior Counsel i/b PDS Legal, Advocates. For the Respondents: R.V. Desai, Senior Counsel a/w Rohit Pardeshi, N.S. Patel, Stephan Ambrose i/b KRP Legal, Advocates.



Judgment Text


M.S. Sanklecha, J.

1. This is a reference placed before the Full Bench pursuant to the administrative order passed by the learned Chief Justice in view of the order dated 6th September, 2018 passed by the Division Bench of this Court in statutory appeal under the Central Excise Act, 1944 (Act) from the order dated 12th November, 2013 of the Customs, Excise and Service Tax Appellate Tribunal (“Tribunal”). The Division Bench has referred to the Full Bench, the following questions of law for consideration:-

“(a) Whether the question of taxability or excisability of goods is an issue of rate of duty arising from orders of the Tribunal which are appealable only to the Supreme Court in terms of Section 35L(2) of the Act applies even to appeals from order of the Tribunal passed prior to 6th August, 2014 (i.e. the date of insertion of Sub-section (2) to Section 35L of the Act)?

(b) Whether the amendment made to Section 35L of the Act on 6th August, 2014 by insertion of sub-section (2) therein, is clarificatory or prospective in nature?”

2. The Division Bench while hearing the appeal from the impugned order dated 12th November, 2013 of the Tribunal holding that certain goods were not marketable (not excisable) and therefore not classifiable under Chapter 37 heading 3707 of the Central Excise Tariff Act, 1985, was confronted with the issue whether such an order is appealable to this Court or the Hon’ble Supreme Court under the Act. The above issue has to be decided on the interpretation of Sections 35G(1) and 35L(1)and(2) of the Act, which are as follows:-

“Section 35G(1) – Appeal to High Court – An Appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after 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 the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.

(2) to (9) …………

Section 35L (1) – Appeal to the Supreme Court – An appeal shall lie to the Supreme Court from –

(a) any judgment of the High Court delivered –

(i) in an appeal made under section 35G; or

(ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003;

(iii) On a reference made under section 35H in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or

(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 purposes 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 taxability 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 Section 35G(1) and 35L(1) and (2) of the Act. The apparent conflict is between the decisions of this Court in Global Vectra Helicorp Ltd. Vs. C.S.T. Mumbai (CEA No.66 of 2014, decided on 23rd March, 2015) and Bajaj Auto Ltd. Vs. Union of India, (2016) 4 STR 384, decided on 24th June, 2015. According to the referring Division Bench, the decision in Global Vectra 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 purpose 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 Section 35G(1) and 35L(1)(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 clarificatory 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 appeal 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 appeal, 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 appeal against such an order in terms of Section 35G(1) of the Act would lie only before the Hon’ble Supreme Court. Further, the Court also noted that insertion of sub-section (2) to Section 35L of the Act w.e.f. 6th August, 2014 was only clarificatory in nature. Thus, the appeal from an order of the Tribunal relating to taxability / excisability would be appealable before the Hon’ble Supreme Court of India even prior to 6th August, 2014.

(d) On the other hand, the appellant Revenue placed reliance upon the decision of this court in Global Vectra Helicorp Ltd. (supra) where the issue was whether the service rendered by Global Vectra Helicorp Ltd. could be classified under Section 65(105)(zzzzj) of the Finance Act, 1994 as contended by the Revenue and upheld by the Tribunal or not at all under the Finance Act, 1994. The objection raised by the Revenue to the maintainability of the appeal to this Court was negatived. This on the ground that the issue of rate of duty, i.e. of classification, would only arise when the authorities have to decide the appropriate classification between two competing entries under the Finance Act, 1994. It held no question relating to determination of the rate of duty can arise when the order under challenge decides whether the services rendered can be said to be covered by Section 65(105)(zzzzj) of the Finance Act, 1994.

(e) The Division Bench which referred the above question to this Court, noted the fact that although Global Vectra Helicorp Ltd. (supra) did in terms refer to Section 35L(2) of the Act, it did not express any view on it. Moreover, it also noted that the binding decision of the Apex Court in Navin Chemicals Mfg. & Trading Co. Ltd. Vs. Collec tor of Customs, 1993 (68) E.L.T. 3 and the decision of this Court were also not considered. Moreover, before the referring Division Bench, the parties did not dispute that post insertion of subsection (2) to Section 35L of the Act, w.e.f. 6th August, 2014, orders of the Tribunal relating to taxability of services and excisability of goods would be appealable to the Hon’ble Supreme Court.

(f) It is in view of the aforesaid conflict between the two views of this Court, as indicated in Global Vectra Helicorp Ltd. (supra) and Bajaj Auto Ltd. (supra), that the aforesaid questions have been referred by the Division Bench to the Full Bench.

5. We have heard Mr. Bangur, for the appellant Revenue and Mr. Sridharan, learned Senior Counsel who appears for the appellant in Central Excise Appeal No. 33 of 2018 where he states an identical question would arise in an appeal filed by M/s. Shoppers Stop Ltd. Both of them support the proposition that appeals from orders of the Tribunal in respect of excisability / taxability will lie to this Court. We have also heard Mr. Desai, learned Senior Counsel, who appears for the respondent-assessee to contend that the appeal from orders of the Tribunal in respect of excisability / taxability will be to the Hon’ble Supreme Court.

6. Regarding issue no.(A):-

(I) Mr. Bangur and Mr. Sridharan in support of the contention that prior to 6th August, 2014, appeals on the issues of taxability / excisability would be before this Court, made the following submissions:-

(a) Prior to insertion of Section 35L(2) of the Act, appeals to this Court were governed by Section 35G(1) and 35L(1)(b) of the Act. In terms of Section 35G(1) and 35L(1)(b) of the Act, issue of excisability of goods and / or taxability of services which has no nexus / relationship with rate of duty, would only be appealable to this Court and not the Hon’ble Supreme Court.

(b) In support of the above, reliance is placed upon the decision of the Supreme Court in Commissioner of Customs Vs. Motorola India Ltd. 369 ELT 3. In the above case, the Apex Court while dealing with an identical provision, viz. Sections 130(1) and 130E of the Customs Act, 1962, held that the question of satisfaction of a condition in an exemption notification, is not a question / issue relating to determination of rate of duty for the purpose of assessment. This view was taken after referring to the decision of the Hon’ble Supreme Court in Navin Chemicals (supra). Thus, appealable before the High Court.

(c) Reliance was placed upon the decision of this court in Greatship (India) Ltd. Vs. Commissioner of Service Tax, Mumbai (Central Excise (L) No. 20 of 2018, dated 24th March, 2015). In the above case, this Court after placing reliance upon the decision of the Apex Court in Navin Chemicals (supra), has taken a view that an appeal to the Supreme Court with regard to taxability of service or excisability of goods for the purpose of assessment was a new condition / category which was born by virtue of an amendment to Section 35L of the Act by insertion of Sub-Section (2) thereof on 6th August, 2014. Prior thereto, the issues which could be dealt with by the Supreme Court from the orders of the Tribunal, as culled out from Navin Chemicals (supra), were as follows:-

(i) determination of a question relating to the rate of duty

(ii) determination of a question relating to valuation of the goods for the purpose of assessment

(iii) determination of question relating to classification of goods under the tariff and whether or not they are covered by an exemption notification, and

(iv) whether the value of goods for the purpose of assessment could be enhanced or reduced having regard with certain matters that the Act provides for.

(d) The insertion of sub-section (2) to Section 35L of the Act w.e.f. 6th August, 2014 is itself evidence of the fact that prior thereto, appeals in respect of taxability and excisability were to the High Court. It is thus submitted that the issue of taxability or excisability being a rate of duty issue has only come into force w.e.f. 6th August, 2014, when sub-Section (2) of Section 35L of the Act was inserted. Thus, prior to the insertion thereof, it is submitted that the orders of the Tribunal relating to issue of taxability and excisability were to be entertained 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 Vs. Pawan Kumar Bansal, (2015) 315 ELT 529, (Del.)

(2) Commissioner of Central Excise, Hyderabad-IV Vs. Shriram Refrigeration Industries, 2009(240) ELT 201 (A.P.), (the Hon’ble Supreme Court has admitted the appeal against this order on 11th March, 2011 reported in 362 ELT A108)

(3) Thejo Engineering Services Pvt. Ltd. Vs. Commissioner of Central Excise, Chennai, (2017) 349 ELT 113. (Mad.)

(4) Commissioner of Central Excise Vs. Kerala State Beverages, (2014) 300 ELT 217 (Kerala)

(5) Commissioner of Central Excise & Customs Vs. Swiss Glass Coat Equipments Ltd. (2011) 273 ELT 364 (Guj.)

(6) Tata power Company Ltd. Vs. Commissioner of Customs, Mangalore, (2017) 345 ELT 94 (Karnataka),

(7) Commissioner of Central Excise, Mangalore Vs. Mangalore Refineries & Petrochemicals Ltd. (2011) 270 ELT 49,

(8) Indian Strips Vs. Commissioner 302 ELT A 62 (Gj.)

(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 Section 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 relating to the rate of duty of excise or value of goods for the purpose of assessment. The above orders were excluded from the jurisdiction of the High Court and were appealable only to the Hon’ble Supreme Court in terms of Section 35L(1)(b) of the Act. In the context of the above, we have to consider that when the order of the Tribunal decides a dispute that the service is not covered by the Finance Act or goods not being covered by the Act for the purposes of determining the rate of duty for the purpose of assessment, would be appealable to this Court or not.

(b) The contention of the appellant - Revenue is that deciding of excisability or taxability is not connected to the rate of duty. Therefore, an order of the Tribunal deciding excisability / taxability are appealable to the High court and not the Hon’ble Supreme Court. In support reliance is placed upon the decision of the Supreme Court in Motorola India Ltd. (supra), while dealing with pari materia provisions under the Customs Act, 1962. We note that the issue in the above case was not with regard to excisability or taxability or importability in the context of Customs Act, 1962 but with regard to eligibility of an exemption notification for non-satisfaction of post import conditions therein. In the above case, there was no issue relating to the rate of duty in respect of the goods imported but the issue was application of an exemption after importation and clearance for home consumption, subject to satisfying the conditions of the notification, viz. utilization of imported material for specific purpose such as manufacture of final product. The Supreme Court, while holding that the above issue is not a rate of duty issue, observed that the dispute is inter se between the parties and the decision is not applicable to a separate class or category of assessees as a whole. The above decision will not apply to a decision of the Tribunal dealing with taxability / excisability which necessarily would require determining the rate of duty for the purpose of assessment. It is only on deciding the taxability of services or excisability of goods that a rate of duty can be decided. The words “determination of any question having a relation to rate of duty of excise for the purpose of assessment” as found in the context of Section 35G and 35L of the Act was a subject of consideration by this Court in Sterlite Optical Technologies Ltd. Vs. Commissioner of Central Excise 213 ELT 658. This Court held that the word “assessment” has a very comprehensive meaning, i.e. it can comprehend the whole procedure for ascertaining and imposing duty liability. Thus, the words “for the purpose of assessment” would cover even the issue of the Tribunal deciding excisability and / or taxability as it is a part of the process of assessment. Besides, the answer to the question whether a product / service is excisable / taxable will not only have an impact on a dispute between parties inter se but would have an all India impact and, therefore, the statute contemplates an appeal to the Hon’ble Supreme Court for uniformity of decisions. Otherwise, we would have a situation where different High Courts take different views on the issue of excisability / taxability, leading to a situation where in some States the service / goods are not taxable / excisable and taxable in other States. Thus, the decision of the Apex Court in Motorola (India) Ltd. (supra) has specifically referred to the fact, that the issue before it does not have an all India impact. This as it does not deal with issue of taxability / excisability for the purpose of assessment.

(c) The appellant Revenue also relies upon the decision of this Court in Greatship (India) Ltd. (supra) and of the Supreme Court in Navin Chemicals (supra) to contend that an appeal arising from an order dealing with taxability / excisability would only be before this High Court and not the Hon’ble Supreme Court. We find that the decision in Greatship (India) Ltd. (supra) of this Court is not applicable to the present facts, as it itself records in paragraph 24 and 28 thereof that there was no dispute before it that the services are taxable. Thus, the objection of the Revenue (respondent before it) that this Court does not have jurisdiction, was negatived. So far as reliance upon the decision of the Apex Court in Navin Chemicals (supra) is concerned, we note that in paragraph 11 thereof, the Supreme Court has observed as under:-

“11. It will be seen that sub-section (5) uses the said expression ‘determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment’ and the Explanation thereto provides a definition of it ‘for the purpose of this sub-section’. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for the purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximatley as to the rate of duty or the value of the goods.”

(emphasis supplied)

From the above, it is clear that the Apex Court noted that the classification of goods under the Tariff for the purpose of determining the rate of duty would be a question having relation to the rate of duty. Thus, the above observations by the Apex Court would support the view that taxability / excisability is not appealable before this Court, as decision on the above is in the context of it being classifiable under the Finance Act, 1994 or the Act r/w the Tariff.

(d) On the other hand, we note that all the decisions relied upon by the respondent and cited hereinabove have held that the issue of excisability, namely, manufacture taking place or not, are all issues relating to rate of duty. Thus, holding that an appeal on the issue of excisability / taxability from the orders of the Tribunal would be to the Hon’ble Supreme Court. In fact, the Kerala High Court in Kerala State Beverages (supra) has held that whether any goods are excisable or not, will fall within the exclusion provided under Section 35G(1) of the Act. It further noted that this distinction between Hon’ble Supreme Court and the High Court seems to be clearly intended to avoid conflict of views between High Courts on a question having all India impact. It is pointed out to us that except in the decision rendered by the Andra Pradesh High Court in Sriram Refrigeration (supra), from which an appeal to the Supreme Court has been admitted on 11th March, 2011 (362 ELT A 108), all the other decisions are final. We find that this Court in Greatship (India) Ltd. (supra) has observed in para 20 thereof that this Court in Commissioner of Central Excise and Service Tax Vs. M/s. Credit Suisse Services (I) Pvt. Ltd. (2015) 38 STR 473 had held the issue of the taxability of the services and the rate at which such services would be taxed was required to be considered by the Hon’ble Supreme Court and not by this Court. It is noteworthy that the Revenue has not been able to show a single decision of any Court (including this Court) except the decision in Global Vectra Helicorp (supra) to support the contention that the issue of excisability / taxability can be entertained by the High Court. We shall deal with the above decision of this Court in Global Vectra Helicorp (supra) separately a little later. During the course of hearing, our attention was also drawn to the decision of the Delhi High Court in Commissioner of Sales Tax Vs. Ernst & Young Pvt. Ltd. 34 STR 3. In the above case, the Court was concerned with the issue whether the services rendered by the assessee therein were chargeable to tax under the Finance Act, 1994. The assessee therein raised a preliminary objection about the jurisdiction of the High Court to entertain the Revenue’s appeal on the above dispute. The Delhi High Court, while following the decision of the Hon’ble Supreme Court in Navin Chemicals (supra), in particular para 11 thereof, held that the orders of the Tribunal deciding the issue of taxability would be appealable to the Supreme Court. It noted in paragraphs 18 and 19 as follows:-

“18. On reading of the said paragraph, it is lucid and clear that Supreme Court had stated that questions relating to rate of duty and valuation for the purpose of assessment as defined in the explanation to sub-section (5) to Section 129D of the Customs Act, would include question relating to classification of goods under the tariff, whether or not they are covered by exemption notification; whether value for the purpose of assessment should be enhanced or reduced etc. It was further observed that statutory definition accords to the meaning given to the expression above. For the purpose of present controversy, we are inclined to ignore and not take into consideration explanation 5 to Section 129D or sub-section (5) to Section 35E. However, in spite of the said position, we do not think that the decision in the case of Delhi Gymkhana Club Ltd. (Supra) is required to be referred to a Larger Bench. Determination of any question relating to rate of tax would necessarily directly and proximately involve the question, whether activity falls within the charging Section and Service Tax is leviable on the said activity. The said determination is integral and an important injunct to the question of rate of tax. In case Service Tax is not to be levied or imposed and cannot be imposed under the charging Section, no tax would be payable. The said determination would be direct or proximate to the issue of rate of tax, which will include nil tax, when no tax is chargeable.

19. If the reasoning given by the Revenue is to be accepted, it will lead to anomaly and substantial confusion. All assessments necessarily have to determine and decide the rate of tax after determining and deciding whether or not activity is chargeable or tax can be levied. Assessments against the assessee would decide the rate of tax applicable once it is held that the activity is chargeable to tax under the F. Act. The words ‘rate of tax’ in relation to rate of tax would include the question whether or not the activity is exigible to tax under a particular or specific provision. This will be a reasonable and appropriate interpretation and will not cause or result in confusion or ambiguity regarding the appellate forum. Line between exigibility and rate of tax as propounded can be rather thin and superfluous in the present statutory context.”

(emphasis supplied)

It further records the fact that the Hon’ble Supreme Court has been entertaining and deciding the appeals under the Act relating to excisability of the goods and in that regard made specific reference to the following decisions of the Supreme Court:-

(a) Maltex (I) Pvt. Ltd. Vs. Commissioner of C.Ex. (2004) 165 ELT 129.

(b) Commissioner of Central Excise Vs. Mahavir Aluminum, 212 ELT 3

(c) Nestle India Ltd. Vs. Commissioner of Central Excise, 235 ELT 577.

We are in complete agreement with the reasons of the above Delhi High Court decision in Ernst & Young Pvt. Ltd. (supra) to conclude that issues of taxability and excisability from the orders of the Tribunal are appealable to the Hon’ble Supreme Court.

(e) It was also contended by the appellant Revenue that insertion of sub-Section (2) to Section 35L of the Act that taxability / excisability would be a rate of duty issue w.e.f. 6th August, 2014 would itself imply that prior to 6th August, 2014, the issue of taxability / excisability was appealable to the High Court. This submission on behalf of the Revenue cannot be accepted in view of the various decisions referred to hereinabove where the Courts have held that issue of excisability of goods and taxability of services are appelable to the Hon’ble Supreme Court even prior to the insertion of sub-section (2) to Section 35L of the Act. The introduction / insertion of sub-Section (2) to Section 35L of the Act was done as a matter of abundant caution so as to clarify and make explicit what was implicit in Section 35G(1) and 35L(1)(b) of the Act. This was done only to ensure that the Courts do not waste time examining the issue again and again, when the issue has already been decided by various Courts upon which the respondent assessee has placed reliance. This in support of its case that an appeal with respect to taxability / excisability is maintainable only before the Hon’ble Supreme Court of India even before the insertion of sub-section (2) of Section 35L of the Act. In fact, this view is also supported by clause 99 of Notes on Clauses to Finance (No.2) Bill, 2014 which introduced sub-section (2) to Section 35L of the Act. It specifically states that Section 35L is being amended so as to clarify that issue of taxability / excisability is covered by the term rate of duty. Thus, what was implict has been made explicit. We find support for this view in the decision of the Supreme Court in W.P.I.L. Ltd. Vs. Commissioner of Central Excise, 181 ELT 359. We also note that Punjab & Haryana High Court Commissioner of S.T. Vs. DLF Golf Resort Ltd. (2018) 56 GSTR 247 has held that insertion of subsection (2) to Section 35L of the Act was clarificatory. Therefore, insertion of sub-section (2) to Section 35L of the Act w.e.f. 6th August, 2014 would not justify the contention of the Revenue that prior to 6th August, 2014, the appeals were maintainable before the High Court.

(f) Therefore, in view of the above, we are of the view that even prior to the insertion of sub-section (2) to section 35L of the Act, the issue of taxability and excisability would be an issue relating to the rate duty of excise / services for the purpose of assessment. Therefore, the appeal from the orders of the Tribunal deciding issue of excisability / taxability, cannot be entertained by this Court in terms of Section 35G(1) and 35L(1)(b) of the Act dehors Section 35L(2) of the Act. Thus, question No. (A) as referred, is answered as under:-

Appeals from orders of the Tribunal relating to taxability / excisability passed prior to 6th August, 2014 i.e. the date of insertion of sub-section (2) to Section 35L of the Act being a rate of duty issue, would be appealable only to the Hon’ble Supreme Court and not the High Court.

7. Regarding issue no.(B):-

In view of our answer in the affirmative to issue no.(A), this issue becomes academic as it also stands covered in favour of the respondent assessee and against the appellant Revenue.

However, as submissions were advanced by the parties on this issue, we are examining the same although almost all facets of these submissions have been ruled upon while deciding issue (A) above.

(I) Mr. Bangur, for the appellant Revenue and Mr. Sridharan, learned Senior Counsel appearing in support of the contention that the provision of appeal under sub-section (2) of Section 35L of the Act relating to taxability and excisability of goods would only have prospective effect from 6th August, 2014, i.e. the date when that sub- Section was inserted in the Act, made the following submissions:-

(a) Section 35L (2) of the Act does not state in terms that it would be retrospective. On this count, in particular, the insertion of sub-section (2) of Section 35L of the Act is made effective only from 6th August, 2014. Thus, it cannot be held to be retrospective. It is submitted that every statute is presumed to be prospective unless made expressly retrospective. In support of this, it is pointed out that insertion of sub-section (2) to Section 35L of the Act was made with effect from 6th August, 2014. Thus, prospective.

(b) Notwithstanding the fact that notes on clauses to the Finance Bill, 2014 states that Sub-Section (2) to Section 35L of the Act has been introduced so as to clarify that the determination of the disputes relating to taxability or excisability of the goods is covered by the expression “determination of any question having relation to the rate of duty of excise”, yet Section 35L(2) of the Act as enacted does not mention that it is in the nature of a clarification and / or effective from an earlier date. Thus, it must be held to be prospective.

(c) The insertion of Section 35L(2) of the Act creates a new class / category of issues, namely, the taxability / excisability as being appealable to the Hon’ble Supreme Court. Prior to the above insertion, issues of taxability / excisability were appealable only to the High Court. In support, reliance is placed upon the decision of the Apex Court in Navin Chemicals (supra) and the decision of this Court in M/s. Greatship (India) Ltd. (supra). Therefore, the insertion of sub-section (2) to Section 35L of the Act has to be read as prospective.

(d) Introduction of a new category, which changes the forum where an appeal would lie, cannot be held to be retrospective. In support, reliance is placed upon the decision of the Supreme Court in the case of Videocon International Ltd. Vs. SEBI (2015) 53 taxmann.com 245 wherein it has been held that altering of the appellate forum from the High Court to the Supreme Court, curtailed one right of the appeal in respect of an aggrieved person. Therefore, such change of forum could not be considered to be only a procedural change but was a substantive change and, therefore, has to be understood to be prospective in nature.

In the above view, it was submitted that the insertion of Sub-Section (2) to Section 35L of the Act ought to be construed as prospective w.e.f. 6th August, 2014.

(II) On the other hand, Mr. Desai, learned Counsel appearing for the respondent, in support of his contention that the amendment by insertion of sub-section (2) to Section 35L of the Act is retrospective in effect, makes the following submissions:-

(a) Consistent view of various Courts in the pre-amendment era has been that appeals in respect of taxability / excisability from orders of the Tribunal lie only to the Hon’ble Supreme Court. Thus, the amendment made in 2014 was only clarificatory as is evident from notes on clauses, which, while introducing the Finance (No.2) Bill, 2014, states that sub-Section (2) of Section 35L of the Act is being introduced with a view to clarify the position.

(b) Reliance is also placed on another Instruction issued on 10th July, 2014 by the Tax Research Unit, Ministry of Finance wherein it was specifically stated that the amendment made in Section 35L of the Act by insertion of Sub-Section (2) was only to clarify that the determination of disputes relating to taxability or excisability of the goods is covered under the term “determination of any question having relation to rate of duty and and would be appealable from the orders of the Tribunal only to the Supreme Court”.

Thus, it is submitted that the amendment is clarificatory.

(III)(a) We have considered the rival submissions. There could be no dispute with the submissions canvassed by the appellants to the effect that generally there is a presumption of prospectivity attached to a legislation. A new law is to regulate what is to follow and not what is past. However, this rule is subject to either the provisions of the statute being made expressly retrospective or by necessary implication retrospective. In our discussion on issue no. (A), we have already held that even prior to insertion of sub-Section (2) to Section 35L of the Act, the issues of excisability / taxability decided by the Tribunal were appealable to the Hon’ble Supreme Court. This in the context of our interpretation of Section 35G(1) and 35L(1)(b) of the Act. Moreover supported by various High Courts decisions and also the fact that such appeals were being entertained by the Apex Court. In the context of the above, the amendment to Section 35L of the Act by insertion of sub-Section (2) therein, whether retrospective or prospective, has to be examined. The amendment / insertion of sub-Section (2) to Section 35 of the Act became necessary to set at rest all doubts as to where appeals arising out of orders of the Tribunal relating to excisability / taxability would lie – whether before the Hon’ble Supreme Court or the High Court. It appears that this insertion of sub-section (2) to Section 35L of the Act became necessary as this issue, viz. where such an appeal would lie, was being urged time and again before various High Courts. To settle the issue being urged and set the matter at rest, it appears that the amendment has been introduced. The amendment, therefore, is in the nature of a clarification and not bringing about any change in the law, i.e. excluding a set of orders of the Tribunal, which were earlier appealable to the High Court, now made appealable to the Honb’le Supreme Court for the first time. This is also supported by the plain reading of sub-section (2) of Section 35L of the Act which merely clarifies / states “having relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment”. In case, it was a new category, then, all that the Parliament had to do was to state that the question of excisability and taxability arising in of an order of the Tribunal would be appealable to the Supreme Court. Further, our interpretation that the amendment of Section 35L of the Act by insertion of sub-Section (2) thereof was clarificatory in nature, is supported by notes on clauses to Finance (No.2) Bill, 2014. In fact, clause 99 thereof states that:-

“Clause 99 of the Bill seeks to insert a new sub-section (2) in section 35L of the Central Excise Act so as to clarify that determination of disputes relating to taxability or excisability is covered under the expression “determination of any question having a relation to rate of duty”.

These notes on clauses are used to interpret the statutory provisions. The Hon’ble Supreme Court in CIT Vs. Vatika Township Pvt. Ltd. 367 ITR 466 placed reliance upon the notes on clauses appended to the Finance Bill, 2002 to hold that the provision, viz. Proviso to Section 113 of the Income Tax Act has to be construed prosectively. The Supreme Court relied upon the notes on clauses to hold the proviso to section 113 of the Income Tax Act is prospective, overriding the recommendations of the Chief Commissioners of Income Tax that proviso should be retrospective. Further in CIT Vs. Podar Cement Pvt. Ltd. 226 ITR 625 also, aid was taken by the Apex Court of the notes on clauses accompanying the Bill, to interpret the statutory provision. In fact, the larger Bench of the Supreme Court in Commissioner of Income Tax Vs. Gold Coin Health Food Pvt. Ltd. 304 ITR 308 has disapproved the view in Virtual Soft Systems Ltd. Vs. CIT, 289 ITR 83, which had held that reference to notes on clauses cannot decide whether the amendment is clarificatory, unless the amendment itself so unequivocally states. The decision of the Apex Court in Gold Coin Health Food Pvt. Ltd. (supra) inter alia relied upon its decision in Podar Cement Pvt. Ltd. (supra). Moreover, the clarification dated 10th July, 2014 issued by the Tax Research Unit of the Ministry of Finance on introduction of the Finance (No.2) Bill, 2014 has specifically stated in Annexure IV thereto, that Section 35L of the Act is being amended to clarify that issues of taxability / excisability are covered by the phrase “determination of any question having relation to the rate of duty”. In fact, the Punjab and Haryana High Court in DLF Golf Resort Ltd. (supra) placed reliance upon the clarification dated 10th July, 2014 (supra) of the Tax Research Unit to hold Section 35L(2) of the Act is retrospective. It may be pointed out that G.P. Singh’s in his seminal work, “Principles of Statutory Interpretation” 14th Edn., has observed that amending Act which is declaratory of the previous law has retrospective operation.

(b) Next submission on behalf of the appellant was that even if there has been an intent on the part of the Government while introducing the amendment to Section 35L of the Act by insertion of sub-Section (2) thereof, yet the same does not find mention in the amended Act as passed by the Parliament. This submission in the present facts would not be correct. This for the reason that the Act was passed in the same form as it was introduced along with notes on clauses to the Bill in the Parliament. Thus, the Parliamentarians were aware 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 prospective. This submission cannot be accepted as consistently the Courts have held that appeals in respect of excisability / taxability are appealable 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 exclusion provided in Section 35G(1) of the Act, would also cover the issue of excisability / taxability being applicable to the Hon’ble Supreme 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 Supreme 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 subsection (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 Section 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 September, 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 appeal from the order of the Tribunal holding that the question of interpretation 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 ground that no rate of duty dispute arises in such a case. It held that Section 35G(1) and 35L(2) of t

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he Act to the extent they oust the jurisdiction of the High Court will only have application where the issue decided by the Tribunal, which was the subject matter of appeal, is whether the services rendered or goods manufactured fall under category (x) or category (y). In the above circumstances alone this Court held that it becomes a rate of duty issue on account of classification. Thus, raising a question having relation to the determination of rate of duty for the purpose of assessment. It is to be noted that in Global Vectra Helicorp Ltd. (supra) even though Revenue objected to the jurisdiction of this Court to entertain the appeal, it had not urged it on the ground that the issue involves taxability. As can be seen from para 7 of the order, the submission of the Revenue was it is a rate of duty issue as the appeal involves classification of the services rendered by the assessee therein under one entry or the other. The issue of taxability was not on the table for the Court to rule on it. Thus, when on facts this Court found that there was only one entry for consideration, it held that it cannot be a rate of duty issue. There was no submission made by the Revenue, while objecting to the jurisdiction of this Court, that in respect of the order of the Tribunal dealing with the taxability / excisability of services / goods was necessary for determining the rate of duty for the purpose of assessment. In the aforesaid circumstances, this Court had no occasion to consider the question of taxability and excisability being a rate of duty issue, even when there is no question of deciding between competing entries. Consequently, the aforesaid decision was rendered sub-silentio. (b) Moreover, in Global Vectra Helicorp (supra) attention of the Court was not invited to the binding decision of the Hon’ble Supreme Court in Navin Chemicals (supra) and various decisions of this Court including Union of India Vs. Auto Ignition Ltd. 142 ELT 292, Sterlite Optical Technologies Ltd. (supra) and Commissioner of Central Excise Vs. Universal Fero, 234 ELT 220. (c) Mr. Sridharan, learned Senior Counsel, placed reliance upon the decision of this Court in Greatship (India) Ltd. (supra), a decision rendered by the same bench as the one that rendered the decision in Global Vectra Helicorp Ltd. (supra). The decision in Greatship (India) Ltd. (supra) was rendered on consideration of all those decisions including the set of decisions which were not considered by the very Division Bench in Global Vectra Helicorp Ltd. (supra). Thus, it is submitted that the bench which passed the order in Global Vectra Helicorp Ltd. (supra) was aware / conscious of the decisions referred to hereinabove while holding that it has jurisdiction to entertain the appeal. This submission overlooks the fact that the decision in Global Vectra Helicorp Ltd. (supra) was rendered on 23rd March, 2015. The decision in Greatship (India) Ltd. (supra) was rendered on 24th March, 2015. Thus, when the order in Global Vectra Helicorp Ltd. (supra) was passed, it cannot be said that the Division Bench was conscious of the aforesaid decisions which appear to have been noticed and considered by it only in its order passed on the next day i.e. 24th March, 2015. Moreover, we are examining the decisions rendered by this Court in Global Vectra Helicorp Ltd. (supra) and the absence of consideration of the binding decisions cannot be filled up by referring to other decisions of the same bench. (d) As against the above, the decision of this Court in Bajaj Auto Ltd. (supra) had held that whether a particular service / good attracts tax / duty or not, would be covered within the ambit of rate of duty for assessment. It further held that sub-Section (2) to Section 35L of the Act was merely clarificatory in nature as it was in the nature of explanation. Therefore, holding that it would apply even to appeals filed from the orders passed by the Tribunal prior to the introduction of Sub-section (2) to Section 35L of the Act. The decision of this Court in Bajaj Auto Ltd. (supra) is in accord with our view, as discussed above and represents the correct view. 9. In view of our above discussion, we now answer the questions posed in the reference for our opinion as under:- Regarding question (a) – Appeals from orders of the Tribunal relating to taxability or excisability passed prior to 6th August, 2014 i.e. the date of insertion of sub-section (2) to Section 35L of the Act being a rate of duty issue would be appealable only to the Hon’ble Supreme Court and not the High Court. Regarding question (b) – The amendment made to Section 35L of the Act is clarificatory in nature and, therefore, retrospective in operation. 10. In view of our answer to the questions as framed, the appeal be placed before the Division Bench for appropriate decision in accordance with law.
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