Revenue is maintainable under Section 35G of CGST Act: Bombay HC

Issue  

Issue relating to the assessment of goods and, therefore, an appeal filed under Section 35G of the CGST Act.

Facts  

• The respondent has an Oil Terminal where they inter-alia received non-duty paid Superior Kerosene Oil (SKO) from their Mahul, Mumbai refinery and cleared the said product falling under Chapter 27 of the Central Excise Tariff on payment of duty to Public Distribution System (PDS) dealers and to other Oil Marketing Companies. 
• The respondent had cleared SKO to Oil Marketing Companies and in respect of those clearances to the said Oil Marketing Companies, paid Central Excise Duty on value which is allegedly lesser than the transaction value, actually recovered by them from the other Oil Marketing Companies in contravention of the provisions of Section 4(1)(a) of the Central Excise Act, 1944.  

Findings  

Sections 35G and 35L of the said Act would clearly indicate that the order passed by the Appellate Tribunal on the issue of determination of any question in relation to the rate of duty of excise or to the value of goods for the purposes of assessment is maintainable under Section 35-L before the Hon’ble Supreme Court only. Under Section 35L(2), it is expressly clarified that the determination of any question having a relation to the rate of duty shall include the determination of taxability or excitability of goods for the purposes of assessment. 

In the view of this Court the issue as to whether the revenue could have invoked the extended period of limitation for recovery of excise duty being a question of fact and/or a mixed question of fact and law, only such order cannot be impugned before the Hon’ble Supreme Court under Section 35L of the said Central Excise Act. 

Judgement  

This Court held that the appeal thus filed by the revenue is maintainable under Section 35G of the said Act before this Court. In this case, the issue of recovery of excise duty and issue of rate and classification of dispute decided by the Tribunal against the respondent-assessee has attained finality. It is not the case of the revenue of challenging any portion of the order selectively though aggrieved by the larger part of the order or entire order. 

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