IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CEA No. 103 of 2008 Date of decision: April 29, 2009 Commissioner of Central Excise Commissionerate, Ludhiana ...APPELLANT VERSUS M/s Oswal Woolen Mills (Unit No. III) G.T.Road, Sherpur, Ludhiana (Pb.) ..... RESPONDENT CORAM: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sanjeev Kaushik, Advocate, for the appellant-revenue. Mr. Surjeet Bhadu, Advocate, for the respondent-assessee (in CEA No. 3 of 2009). *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the digest? M.M.KUMAR, J. This order shall dispose of CEA Nos. 103 of 2008 and 3 of 2009, which have been filed by the revenue under Section 35 (G) of Central Excise Act, 1944 (for brevity 'the Act') against the order dated 05.07.2007 (Anneuxre P-7) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity 'CESTAT). CEA No. 103 of 2008 -2- A perusal of para 7 of the order shows that the allegation of the revenue is essentially that of under valuation of goods. Para 7 of the order reads thus: “ The allegation is essentially that of under valuation of goods. In the facts of the case, we find that an allegation of under valuation of transactions is not viable. Firstly, because the first appellant was selling only a part of its produce to the second appellant and Revenue has no case that the sale prices were at a price lower than the price charged from other parties. Secondly, M/s Vanaik Spinning Mills Ltd. was selling majority of its produce to parties other than the first appellant. There is no allegation that those sale prices were higher than the sale price to the first appellant. It also does not stand to reason that an assessee would sell bulk of its produce at undervalued prices to a party so as to benefit from undervalued return of about 40% of its sales. Thus, the finding regarding undervalued Circular transactions and evasion of duty do not fit in with with facts of the case.” On behalf of the respondent-assessee, a preliminary objection has been raised that in cases where the order passed by the Appellate Tribunal concerns the valuation of goods, then the appeal would be competent only before Hon'ble the Supreme Court as per the provisions of Section 35-G read with Section 35-L of the Act. There is a clear bar under Section 35 (G) of the Act to entertain an appeal by the High Court where the question involved is regarding the valuation of goods for the purpose of assessment. CEA No. 103 of 2008 -3- Relevant part of Section 35 G (1) of the Act which the controversy raised, reads as under: “ 35 G. 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 1 st 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.” (emphasis added). A perusal of the aforesaid provision shows that the appeal emerging out of the order relating to the determination of any question to the value of goods for the purposes of assessment would not be competent before this Court and according to Section 35 L (b) such an appeal would be competent only before Hon'ble the Supreme Court. Therefore, no appeal would be competent before the High Court. As a sequel to the above discussion, both the appeals are not maintainable. The appellant-revenue may avail the remedy in accordance with law. ( M.M.KUMAR ) JUDGE (AUGUSTINE GEORGE MASIH ) JUDGE April 29, 2009 pj