OD 31 ORDER SHEET CEXA/37/2026 IA NO: GA/1/2026, GA/2/2026 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION ORIGINAL SIDE COMMISSIONER OF CGST AND CX, BOLPUR COMMISSIONERATE VS M/S EASTERN COAL FIELDS LIMITED BEFORE: The Hon’ble JUSTICE RAJARSHI BHARADWAJ AND The Hon’ble JUSTICE SUDIP DEB Date: 3rd September, 2026. Appearance: Mr. Kaushik Dey, Adv. Mr. Tapan Bhanja, Adv. Mr. Gourab Karmakar, Adv. …for the appellant Mr. Rajeev Agarwal, Adv. …for the respondent The Court: We have heard learned counsel for the parties. There is a delay of 336 days in filing the appeal. We are satisfied with the explanation offered for not preferring the appeal within time. Therefore, the delay is condoned. The application being GA 1 of 2026 is allowed. Learned counsel appearing for the Central Excise Department suggests the following substantial questions of law by filing the appeal under Section 35G of the Central Excise Act, 1944. 2 “a) Whether the respondent is liable to pay cess under section 83(3) of the Finance Act, 2010 read with Rule 6 of the Clean Energy Cess Rules 2010 on goods lying in stock as on 30.06.2017 ? b) Whether the impugned order passed by the Learned Tribunal is perverse and suffers from non application of mind in as much as the Learned Tribunal failed to appreciate that the levy and collection of Cess was on production of coal, lignite and peat as per Section 83(3) of the Finance Act, 2010 and was required to be discharged on clearances of such goods and the Notification No.12/2017-CE dated 30.06.2017 exempting Central Excise duty on excisable goods manufactured and lying as closing stock as on 30.06.2017 was not issued in respect of Clean Environment Cess (Clean Energy Cess was renamed as “Clean Environment Cess” through Finance Act, 2016) and as such the Clean Environment Cess is leviable on the closing stock of coal as on 30.06.2017 and the respondent is required to pay the Cess on production of coal which was in the stock as on 30.06.2017 at the time of removal ? c) Whether the impugned order dated 16.01.2025 passed by the Learned Tribunal is in violation of the principles of natural justice in as much as the Learned Tribunal set aside the demand solely relying upon the decision in the case of Bharat 3 Cooking Coal Limited versus Commissioner of CGST & Central Excise, Ranchi without addressing the detailed finding in the order-in-original as well as without going into the merits of the matter ? d) Whether the impugned order dated 16.01.2025 passed by the Learned Tribunal is perverse and can be sustained under the scrutiny of law ?” Section 35G of the Central Excise Act, 1944 speaks of appeal to High Court which is quoted below:- “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 the 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 any order passed by the Appellate Tribunal 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 of two hundred rupees where such appeal is filed by the other party; 4 (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. [(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.]” The Central Excise Act, 1944 also speaks of appeal to Supreme Court which is quoted below:- “35L. Appeal to Supreme Court. – [(1)] An appeal shall lie to the Supreme Court from – [(a) any judgment of the High Court delivered – (i) in an appeal made under section 35G; or (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 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 judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or] (b) any order passed [before the establishment of the National Tax Tribunal] 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 for purposes of assessment. 5 [(2) 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.]” On perusal of Sections 35G and 35L of the Central Excise Act, 1944, in our opinion, this appeal should be preferred before the Hon’ble Supreme Court under Section 35L Sub-section (2) of the Act. The appeal and the connected application preferred by the department are dismissed. Leave is granted to the learned advocate-on-record of the appellant to receive certified copy of the tribunal from the department and replace it with a photocopy of the same. (RAJARSHI BHARADWAJ, J.) (SUDIP DEB, J.) B.Pal