Rajasthan High Court - Jodhpur
Sangeeta Bohra vs The Commissioner Of Central Excise And ... on 11 April, 2019
Author: Sangeet Lodha
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Central/excise Appeal No. 109/2018
Shree Bherav Amla Food Processors, Dhanji Ka Khera Road,
Village Tasol, Rajsamand. Rajasthan - 313334 Through Prop. Sh.
Nitesh Bohra S/o Sh. Mahendra Bohra, Age 29 Years, R/o 23,
Shanti Nagar, Nai Aabadi, Kankroli, Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector-11, Near Shahi Bagh, Udaipur ,
Rajasthan - 313002
----Respondent
Connected With
(2) D.B. Central/excise Appeal No. 101/2018
Shree Bherav Engineers, 975, Dhanji Ka Khera Road, Village -
Tasol, Rajsamand, Rajasthan - 313334 Through Prop. Sh.
Mehendra Bohra R/o 23, Shanti Nagar, Nai Aabadi, Kankroli,
Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magari, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan 313002
----Respondent
(3) D.B. Central/excise Appeal No. 103/2018
Shree Bherav Diamond Tools Pvt. Ltd., Dhanji Ka Khera Road,
Village - Tasol, Rajsamand, Rajasthan - 313334 Through Its
Director Sh. Mehendra Bohra Age 58 Years, R/o 23, Shanti
Nagar, Nai Aabadi, Kankroli, Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, 142-B
Magri, Sector-11 Near Shahi Bagh, Udaipur
----Respondent
(4) D.B. Central/excise Appeal No. 104/2018
Shree Bherav Engineers, 975, Dhanji Ka Khera Road, Village -
Tasol, Rajsamand, Rajasthan - 313334 Through Prop. Sh.
Mehendra Bohra R/o 23, Shanti Nagar, Nai Aabadi, Kankroli,
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(2 of 12) [EXCIA-109/2018]
Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magari, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan 313002
----Respondent
(5) D.B. Central/excise Appeal No. 105/2018
Shree Bherav Diamond Tools Pvt. Ltd., Dhanji Ka Khera Road,
Village - Tasol, Rajsamand, Rajasthan - 313334 Through Its
Director Sh. Mehendra Bohra R/o 23, Shanti Nagar, Nai Aabadi,
Kankroli, Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magari, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan 313002
----Respondent
(6) D.B. Central/excise Appeal No. 107/2018
Shree Bherav Diamond Impex, Dhanji Ka Khera Road, Village
Tasol, Rajsamand. Rajasthan - 313334 Through Sole Prop. Sh.
Nitesh Bohra R/o 23, Shanti Nagar, Nai Aabadi, Kankroli, Dist.
Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan - 313002
----Respondent
(7) D.B. Central/excise Appeal No. 108/2018
Shree Bherav Amla Food Processors, Dhanji Ka Khera Road,
Village Tasol, Rajsamand. Rajasthan - 313334 Through Prop. Sh.
Nitesh Bohra S/o Sh. Mahendra Bohra, Age 29 Years, R/o 23,
Shanti Nagar, Nai Aabadi, Kankroli, Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector -11, Near Shahi Bagh, Udaipur,
Rajasthan-313002
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(3 of 12) [EXCIA-109/2018]
----Respondent
(8) D.B. Central/excise Appeal No. 110/2018
Sangeeta Bohra W/o Sh. Mahendra Bohra, Aged About 47 Years,
R/o 23, Shanti Nagar, Nai Aabadi, Kankroli, Dist. Rajsamand.
(Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan.313002
----Respondent
(9) D.B. Central/excise Appeal No. 111/2018
Swastik Enterprises, Through Its Sole Prop. Pinky Bohra, R/o 23
Shanti Nagar, Nai Aabadi, Kankroli, Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector-11, Near Shahi Bagh, Udaipur,
Rajasthan - 313002
----Respondent
(10) D.B. Central/excise Appeal No. 112/2018
Shree Bherav Tools Corporation, Dhanji Ka Khera Road, Village
Tasol, Rajsamand. Rajasthan - 313334 Through Sole Prop. Sh.
Mudit Bohra Aged 25 Yrs, R/o 23, Shanti Nagar, Nai Aabadi,
Kankroli, Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan - 313002
----Respondent
(11) D.B. Central/excise Appeal No. 113/2018
Sangeeta Bohra W/o Sh. Mahendra Bohra, Aged About 47 Years,
R/o 23, Shanti Nagar, Nai Aabadi, Kankroli, Dist. Rajsamand.
(Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector -11, Near Shahi Bagh,
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(4 of 12) [EXCIA-109/2018]
Udaipur,rajasthan-313002
----Respondent
(12) D.B. Central/excise Appeal No. 114/2018
Shree Bherav Tools Corporation, Dhanji Ka Khera Road, Village
Tasol, Rajsamand. Rajasthan - 313334 Through Sole Prop. Sh.
Mudit Bohra Age 25 Yrs, R/o 23, Shanti Nagar, Nai Aabadi,
Kankroli, Dist. Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan - 313002
----Respondent
(13) D.B. Central/excise Appeal No. 115/2018
Shree Bherva Tools Industries, Through Its Sole Prop. Sangeeta
Bohra R/o 23, Shanti Nagar, Nai Aabadi, Kankroli, Dist.
Rajsamand. (Rajasthan)
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magri, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan-313002
----Respondent
(14) D.B. Central/excise Appeal No. 106/2018
Mahandra Bohra S/o Sh.gasi Lal Bohra, Aged About 58 Years,
R/o 23, Shanti Nagar, Nai Aabadi, Kankroli, Dist. Rajsamand.
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magari, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan 313002
----Respondent
(15) D.B. Central/excise Appeal No. 102/2018
Mahandra Bohra resident of 23, Shanti Nagar, Nai Aabadi, aged
about 58 years, Kankroli, District Rajsamand
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(5 of 12) [EXCIA-109/2018]
----Appellant
Versus
The Commissioner Of Central Excise And Service Tax, Udaipur,
142-B, Hiran Magari, Sector - 11, Near Shahi Bagh, Udaipur,
Rajasthan 313002
----Respondent
For Appellant(s) : Mr. Vikas Balia and Mr. Jagat Tatia
For Respondent(s) : Mr. Rajvendra Sarswat
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Order 11/04/2019 The present bunch of appeals under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944') arise out of a common judgment and order dated 11.5.2018 passed by the Central Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'the CESTAT or the tribunal').
All these appeals belonging to one family group can be broadly furcated in three categories; duly shown in Table 'A', 'B' and 'C'.
Table-A
DB EXCIA CESTAT Case
S. No. Case Title
No. No.
Shree Bherav Engineers vs
Commissioner of Central
1 101/2018 E/50049/2018
Excise & Service Tax, Udaipur
(Raj.)
Shree Bherav Diamond Tools
Pvt. Ltd. vs Commissioner of
2 105/2018 E/50047/2018
Central Excise & Service Tax,
Udaipur (Raj.)
Shree Bherav Diamond
Impex vs Commissioner of
3 107/2018 E/50058/2018
Central Excise & Service Tax,
Udaipur (Raj.)
(Downloaded on 27/06/2019 at 11:07:44 PM)
(6 of 12) [EXCIA-109/2018]
Shree Bherav Amla Food
Processors vs Commissioner
4 108/2018 E/50051/2018
of Central Excise & Service
Tax, Udaipur (Raj.)
Shree Bherav Tools
Corporation vs Commissioner
5 114/2018 E/50052/2018
of Central Excise & Service
Tax, Udaipur (Raj.)
Shree Bherav Diamonds
Tools Pvt. Ltd. vs
6 103/2018 E/50048/2018 Commissioner of Central
Excise & Service Tax, Udaipur
(Raj.)
Shree Bherav Engineers vs
Commissioner of Central
7 104/2018 E/50050/2018
Excise & Service Tax, Udaipur
(Raj.)
Shree Bherav Amla Food
Processors vs Commissioner
8 109/2018 E/50057/2018
of Central Excise & Service
Tax, Udaipur (Raj.)
Shree Bherav Tools
Corporation vs Commissioner
9 112/2018 E/50054/2018
of Central Excise & Service
Tax, Udaipur (Raj.)
Item No.1 to 5 mentioned in the above Table-A emanate from show cause notice No.V(82) Adj./UDR/83/2015/75-90 dated 8.4.2015, pursuant whereof an order in original dated 29.8.2007 came to be passed confirming a demand of excise duty amounting to Rs.2,91,28,460/- against Shree Bherav Diamond Tolls Pvt. Ltd and its related manufacturing firms, namely (i) Shree Bherav Engineers (ii) Shree Bherav Diamond Impex; (iii) Shree Bherav Tools Corporation; and (iv) Shree Bherav Amla Food Processors.
While item No. 6 to 9 mentioned in the above Table-A emanate from show cause Notice C.No.V (82) Adj./UDR/132/2015/174-184 dated 7.5.2015, pursuant whereof an order in original dated 29.8.2007 came to be passed confirming a demand of excise duty amounting to Rs.58,47,246/- against Shree Bherav Diamond Tolls Pvt. Ltd and its related manufacturing (Downloaded on 27/06/2019 at 11:07:44 PM) (7 of 12) [EXCIA-109/2018] firms namely (i) Shree Bherav Engineers (ii) Shree Bherav Tools Corporation; and (iii) Shree Bherav Amla Food Processors.
Table-B
DB
CESTAT Case
S. No. EXCIA Case Title
No.
No.
Shree Bherav Tools Industries vs
1 115/2018 E/50053/2018 Commissioner of Central Excise &
Service Tax, Udaipur (Raj.)
M/s Swastik Enterprises vs
2 111/2018 E/50056/2018 Commissioner of Central Excise &
Service Tax, Udaipur (Raj.)
Shree Bherav Diamond Impex vs
3 107/2018 E/50058/2018 Commissioner of Central Excise &
Service Tax, Udaipur (Raj.)
The appeals shown in Table-B above, involve penalty under Rule 25 of the Central Excise Rules, 2002 (hereinafter referred to as 'the Rules of 2002'), inflicted by the adjudicating authority upon the above three assessees, while confirming the demand of duty while passing the adjudication order dated 29.8.2017.
Table-C S. DBEXCI CESTAT Case Case Title No. A No. No. 1 110/2018 E/50061/2018 Smt. Sangeeta Bohra vs Commissioner of Central Excise & Service Tax, Udaipur (Raj.) 2 113/2018 E/50055/2018 Smt. Sangeeta Bohra vs Commissioner of Central Excise & Service Tax, Udaipur (Raj.) 3 106/2018 E/50060/2018 Shri Mahendra Bohra vs Commissioner of Central Excise & Service Tax, Udaipur (Raj.) 4 102/2018 E/50059/2018 Shri Mahendra Bohra vs Commissioner of Central Excise & Service Tax, Udaipur (Raj.) The above referred appeals mentioned in Table-C question the imposition of penalty upon the Directors/ partners of the companies/firms. The adjudicating authority while passing the order in original dated 29.8.2017, found the above persons guilty (Downloaded on 27/06/2019 at 11:07:44 PM) (8 of 12) [EXCIA-109/2018] of circumventing and misusing the provision of SSI exemption notification No.08/2003 and hence penalty under Rule 26(1) of the Rules of 2002 was imposed.
To complete the narration of facts, it is to be noticed that since DB Central/Excise Appeal No.107/2018 involve both duty and penalty under Rule 25 of the Rules of 2002; it has been reflected in Table-A and Table-B both. As a matter of fact there are 15 appeals in all.
It is pertinent that while passing the common order in original the adjudicating officer recorded as under :
"....... Shri Mahendra Bohra Director of M/s. SBDTPL has floated the manufacturing as well as trading firms, over the period of time, in the name of his family members in order to circumvent the legal provisions and to evade the payment of central excise duty on the goods manufactured and removed clandestinely under the invoices of the floated firms. It has also been established that the family members viz. his wife, sons and daughter in whose name, the firms were floated were not looking after any business activities of the firms and they have supported & abetted only by giving their name to be used with sole intent to evade the tax under the umbrella of family group i.e. Bherav Group. It is also fact that they all were having different entities but they were very much part of same organization and were also having financial interest with each other. Therefore, they all were working under the shadow of one umbrella which was controlled an administered by Shri Mahendra Bohra only. Thus, they have mutuality of interest as discussed above. In view of the, no separate SSI exemption upto Rs.1`5 Crore can be given to each firm being run by same person. It was more so where the pervasive and management control is owned by one firm, the SSI exemption is restricted with reference to aggregate value of clearance by manufacturer from one or more factories. Therefore, it is evident that M/s. SBDTPL through its director Sh. Mahender Bohra deliberately, knowingly and intentionally in connivance with family members have irregularly and fraudulently availed SSI exemption under Notification No.8/2003-CE dated 1.3.2003 by floating separate entities with sole intent of illegal motives of not taking of Central Excise Registration for all the units, clearing the goods without any invoice (Downloaded on 27/06/2019 at 11:07:44 PM) (9 of 12) [EXCIA-109/2018] required under Rule 11 of CER, 2002, without assessing and discharging the duty liability, without submitting Central Excise Return and without informing department that trading units were owned by related persons as defined under Section 4 of Central Excise Act, 1944. These acts of M/s.SBDTPL resulted in contravention of the provisions of Rule 4,6,8,9,10,11 and 12 of the Central Excise Rules, 2002 and Rule 9 and 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000 and thereby they have evaded the payment of Central Excise duty amounting to Rs.3,49,75,706/- (Rs.2,91,28,460/- +Rs.58,47,246/-) during the period 2009-10 (Jan 2010 onwards) to 2013-14 and 2014-15 respectively which is determined under Section 11A(10) of the Central Excise Act 1944 and same is liable to be recovered from them".
The contentious issues posed by the appellants are as to whether the Rules 9 and 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 are applicable or not and also that in the facts of the case, the clubbing of clearance of all the concerns was justified or not.
As far as 9 appeals mentioned in Table-A are concerned, they deal with the valuation of the goods and consequential determination of duty, whereas appeals mentioned in Table-B and Table-C despite relating to imposition of penalty, essentially hinge upon the valuation of goods or determination of duty in relation to the appeals mentioned in Table-A. Mr. Rajvendra Sarswat learned counsel for the respondents- revenue at the outset submitted that these appeals preferred under Sectiono 35G of the Act of 1944 are not maintainable before the High Court, as they involve question of valuation of goods. He contended that appropriate course for the appellant was to file appeals before Hon'ble Supreme Court, under Section 35L of the Act of 1944.
At this juncture Mr. Vikas Balia learned counsel for the appellant fairly conceded that the appeals ought to have been filed (Downloaded on 27/06/2019 at 11:07:44 PM) (10 of 12) [EXCIA-109/2018] before Hon'ble the Supreme Court. Though rival parties have accepted that all the 9 appeals mentioned in Table-A were required to be filed under Section 35L of the Act of 1944, before Hon'ble the Supreme Court yet the appellant was wary of maintainability of 6 appeals involving question of penalty before the Supreme Court. According to him since penalty did not involve question of determination/valuation of goods, the position of law was not clear. Hence, we embark upon to decide the question of maintainability of these appeals.
Section 35G(1) of the Act of 1944 provides an appeal to the High Court against an order of the tribunal, however, with an exception to the effect that an appeal involving question of valuation of goods or rate of duty shall lie before Hon'ble the Supreme Court under Section 35L of the Act of 1944. It will not out of place to reproduce Section 35G(1) of the Act of 1944, which reads thus:
"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 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 purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law."
Upon a bare reading of the provision contained in Section 35G(1) of the Act of 1944, we are of the considered opinion that since in all the appeals enumerated in Table-A above, the basic question revolves around valuation of goods or applicability of Rule 9 or 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000, they are not maintainable as initially Section 35G of the Act. The appellant-assessee is (Downloaded on 27/06/2019 at 11:07:44 PM) (11 of 12) [EXCIA-109/2018] required to challenge these orders of the tribunal before Hon'ble the Supreme Court as provided under Section 35L of the Act of 1944.
It is true that the remaining appeals enlisted in Table-B and Table-C relate to imposition of penalty under Rule 25/26 of the Rules of 2002, but such imposition is dependent upon and relatable to the valuation of the goods and the fate of the appeals enumerated in Table-A shall decide or will have a bearing on the ultimate fate of these appeals. Hence, the remaining appeals mentioned in Table-B and Table-C will also lie before Hon'ble Supreme Court, inasmuch as the language used in Section 35G of the Act of 1944 is wide enough to include the appeals relating to penalty. This view of ours is based on a reading of provision contained in Section 35G(1), more particularly because of the use of the expression,"......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 purpose of assessment....."
A perusal of the orders impugned reveals that the penalty in question has been levied under Rule 25/26 of the Rules of 2002 on the allegation that the valuation of the goods has not been properly made and/or value of clearances of all the manufacturing units need to be clubbed together. Hence, the appeals (mentioned in Table-B and Table-C above) are also required to be heard by Hon'ble Supreme Court. In any case, it will be in the fitness of the things that all the appeals involving common facts and question of law are heard and decided by one forum.
As an upshot of the discussion foregoing, we hold that the appeals at hands are not maintainable before this Court and the (Downloaded on 27/06/2019 at 11:07:44 PM) (12 of 12) [EXCIA-109/2018] same are required to be preferred under Section 35L of the Act of 1944, before Hon'ble Supreme Court.
At this juncture, Mr. Balia, learned counsel for the appellants prayed that the Registry be directed to return the certified copies of the impugned orders of the tribunal, so as to enable him to take appropriate remedy(ies) in accordance with law.
We do not find any impediment in acceding to such innocuous prayer of the appellant.
The Registry is therefore directed to hand over the certified copies of orders of the tribunal filed with the appeals to learned counsel for the appellants, who shall however, submit photostat copies of the concerned orders with his initials, so as to complete the record of the present appeals.
All the appeals are disposed of accordingly.
(SANGEET LODHA),J (DINESH MEHTA),J 45-57, 105 & C-1-CPGoyal/-
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