Appeal to Supreme Court [Section 35L] :
The Central Excise Act, 1944, provides a two tier machinery for redressal of grievances against the decision of the Appellate Tribunal. In cases where the decision of the Appellate Tribunal relates to any question having relation with the determination of ‘rate of duty‘ or ‘value of goods‘ amongst other things, the same is di rectly appealable to the Supreme Court under section 35L of the Central Excise Act.
However, where the order of the Appellate Tribunal does not relate to ‘rate of duty‘ or ‘value of goods‘, first an appeal is made to the High Court and thereafter an appeal against the judgment of the High Court can be made to the Supreme Court provided the High Court certifies it to be a fit case for appeal to the Supreme Court.
Orders appealable to Supreme Court: Section 35L(1) provides that an appeal shall lie to the Supreme Court from
(a) any judgment of the High Court delivered in an appeal made under section 35G if the High Court certifies the case to be fit for appeal to the Supreme Court. The High Court can certify any case on its own motion or on an oral application made by or on behalf of the aggrieved party, immediately after passing of the judgement.
(b) any order of the Appellate Tribunal passed having relation to the determination of rate of duty or value of goods, among other things.
For the purposes 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. Therefore, appeal against orders of Tribunal in such matters would lie before the Supreme Court [Sub-section (2)].
In case of Kalyani Packing Industry v. Union of India 2004 (168) E.L.T. 145 (S.C.), it was held that in the case of a conflict between Supreme Court decision and Departmental clarification, Board‘s Circular cannot prevail over law laid down by the Supreme Court. Court/Tribunal cannot ignore judgment of Supreme Court and follow CBEC circular.
In the case of CCE v. Indo Exim – 2006 (194) E.L.T. 19 (S.C.), the Court has held that in an appeal to Supreme Court, the issue of fact which was not specifically pleaded in answer to writ petition before High Court cannot be allowed as the ground for interference with the decision of the High Court.