CEA No.179 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CEA No.179 of 2005 DATE OF DECISION: January 18, 2010 THE COMMISSIONER, CENTRAL EXCISE ...APPELLANT COMMISSIONERATE, DELHI-IV, FARIDABAD VERSUS M/S FOOD AN HEALTH CARE SPECIALTIES ...RESPONDENT AND ANOTHER CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. PRESENT: MR. GURPREET SINGH, SR. STANDING COUNSEL FOR THE APPELLANT. MR. DEVNATH, ADVOCATE FOR THE RESPONDENT. ASHUTOSH MOHUNTA, J.(ORAL) The challenge in this appeal is to the order (Annexure A-2) dated 25.1.2005, passed by the Commissioner, Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short 'the Tribunal') vide which the Tribunal allowed the respondent's appeal and held that duty is payable by the manufacturer and not by the hired labour. Briefly the facts of the case are that M/s Food & Heatlh Care Specialties entered into an agreement with M/s Heinz India Pvt. Ltd. for blending and packing of Glucon-D and other food products. M/s Food & Heatlh Care Specialties supplied raw material and packing material to M/s Heinz India Pvt. Ltd. on job work basis and for the work, job charges were paid by M/s Heinz India Pvt. Ltd. to respondent No.1. The case of the Revenue was that duty is leviable on the sale of Glucon D and other food CEA No.179 of 2005 -2- products as sold by M/s Heinz India Pvt. Ltd. to respondent No.1 and not on the valuation, as derived by M/s Food & Health Care Specialties. The Assessing Authority as well as the Commissioner decided against respondent No.1, however, in appeal the Appellate Tribunal has set aside both the orders passed by the Assessing Authority as well as by the Commissioner and has held that as respondent No.1 was merely doing a job of work for M/s Heinz India Pvt. Ltd., therefore, the liability of duty rests on M/s Heinz India Pvt. Ltd. and not on respondent No.1. The revenue has challenged the aforementioned order passed by the Appellate Tribunal. Mr. Devnath, counsel for respondent No.1 has raised a preliminary objection that where valuation is under challenge, then an appeal against the order passed under Section 35G of the Central Excise Act, 1944 would lie before the Hon'ble Supreme Court under the provisions of Section 35L of the Central Excise Act. Section 35G and Section 35L of the Central Excise Act are reproduced as under:- “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 Ist 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. (2) The Commissioner of Central Excise or the other party aggrieved by an order passed by the Appellate Tribunal CEA No.179 of 2005 -3- may file an appeal to the High Court and such appeal under this sub-section shall be- (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party. (b) accompanied by a fee or two hundred rupees where such appeal is filed by the other party. (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Whether the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involved such question. (5) The High Court shall decide the question of law so formulated and deliver such judgement thereon containing the grounds on which such decision is founded and may award CEA No.179 of 2005 -4- such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908(5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.] Section 35L Appeal to the Supreme Court – An appeal shall lie to the Supreme Court from - [(a) any judgement of the High Court delivered - (i) in an appeal made under section 35G; or CEA No.179 of 2005 -5- (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of, 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 judgement the High Court certifies to be a fit one for appeal to the Supreme Court; or]. (b) any order passed 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 and purposes of assessment. Counsel for respondent No.1 has placed reliance on Commissioner of C.Ex., Chandigarh Vs. CESTAC , New Delhi , reported 2007(209) E.L.T. 179 (P&H) in which it has been held that where valuation of goods for the purpose of leviable duty is concerned, jurisdiction of the High Court is specifically excluded under Section 35G of the Central Excise Act. Counsel for the appellant has not been able to dispute the aforementioned legal position. In view of the above, we held that the present appeal filed under Section 35G of the Act challenging the order passed by the Tribunal (Annexure A-2) with regard to the value of goods for the purpose of assessment does not lie before the High Court and the appellant, if so CEA No.179 of 2005 -6- advised, may avail the remedy in terms of the Central Excise Act, 1944. The appeal filed by the Revenue is thus, dismissed as being not maintainable. (ASHUTOSH MOHUNTA) JUDGE January 18, 2010 (MEHINDER SINGH SULLAR) Gulati JUDGE