Indira Banerjee, J. - (1.) IN this writ petition the petitioner has challenged an Order Nos. A -156 -157/Kol/2012, dated 21st March, 2012, the operative part whereof is set out hereinbelow: 4. We have carefully considered the submissions and perused the records. We find that the Department itself is questioning the legality and propriety of the impugned order. Therefore, it is expedient to set aside the impugned order and remand the matter to the original authority for a fresh decision, who shall take into account the grounds of the appeals advanced by the appellants (Assessees). We also find that this Tribunal has been taking a consistent view in such cases where the Department itself is questioning the legality and propriety of the impugned order and the appellants (Assessees) are also in appeal. This Tribunal in the case of M/s. Singh Brothers EXIM Pvt. Ltd. and Shri Anand Kumar Singh v. CC (Port), Kolkata vide Tribunal's Order No. S -38 -39/A -49 -5I/KOL/08, dated 8 -1 -2008 and in the case of M/s. Automatic Small Scale Industries and Others v. CCE, Kolkata -II & CCE -Kolkata -II v. M/s. Bonsai Hardware Store & Others vide Order No. A -61 -70/KOL/2012, dated 8 -2 -2012, on similar facts, remanded the case to the lower Adjudicating Authority for deciding it afresh. Therefore, the case is remanded to the Adjudicating Authority for deciding the matter afresh. It is made clear that all the issues are kept open and both sides are at liberty to produce documents in their support. Needless to say that an opportunity of hearing may be granted to appellants (Assessees). The Appeals are disposed of by way of remand. With the greatest of respect to the learned Tribunal, it is absolutely shocking that an appeal should be remitted on the sole ground that the Department had questioned the legality and the propriety of the order impugned. The earlier order dated 8th January, 2008 of the learned Tribunal, on which reliance has been placed, was an order by consent in a case where both the Department and the assessee had appealed.
(2.) MR . Bharadwaj has taken a preliminary objection to this writ petition on the ground of existence of an alternative remedy of appeal under Section 35G of the Central Excise Act, 1944. Section 35G(1) is set out hereinbelow for convenience: 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.
(3.) AN appeal lies to the High Court only in respect of an order which involves a substantial question of law. For an appeal to be entertained, the High Court has to be satisfied that a substantial question of law is involved. The High Court is required to formulate the question of law and the appeal is to be heard only on the question of law so formulated. Of course, the High Court might decide any other substantial question of law that may not have been formulated.;