2010 (12) TMI 797 - HC - Central Excise

Appeal Dismissed Due to Classification Dispute

The Court dismissed the appeal as it raised a classification dispute directly related to the rate of duty for assessment purposes, making it not ... Appeal under Section 35G - Classification - Section 35G of the Act lays down that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, not being an order relating, amongst 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 - In the circumstances, in the light of the decision of the apex court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs (1993 -TMI - 43621 - SUPREME COURT OF INDIA), the classification dispute having a direct nexus to the determination of the rate of duty, the present appeal which relates to a classification dispute would not be maintainable under Section 35G of the Act to the High Court - The Tribunal has also recorded that the assessee had submitted that the Supreme Court had also considered this issue in M/s. Virlon Textile Mills, (2007 -TMI - 1260 - SUPREME COURT OF INDIA) and that, there were several other decisions of the Tribunal subsequent to the decision of the Larger Bench on the same issue in favour of other 100% EOUs - Considering the fact that the issue was no longer res-integra and stood decided in favour of the assessee, the Tribunal allowed the appeal in favour of the assessee. Issues Involved:1. Violation of EXIM Policy conditions.2. Non-payment of excise duty.3. Error in CESTAT's judgment.4. Binding nature of SDR's concession.5. Applicability of the Juned Bilal Memon case.6. Justification of CESTAT's decision without reasons.Issue-wise Detailed Analysis:1. Violation of EXIM Policy ConditionsThe appellant, Commissioner of Central Excise, Customs & Service Tax, Daman, challenged the Tribunal's order on the grounds that the respondent assessee violated para 6.8(f) of the EXIM Policy (2002-07) by selling finished products in the Domestic Tariff Area (DTA) without prior permission from the Development Commissioner and without achieving positive Net Foreign Exchange (NFE).2. Non-payment of Excise DutyThe appellant contended that the assessee violated the proviso to Section 3 of the Central Excise Act, 1944 by not paying excise duty equal to the aggregate duty of customs on the entire sale of finished goods in the DTA, irrespective of whether the goods were manufactured from indigenous or imported raw materials.3. Error in CESTAT's JudgmentThe appellant argued that the Tribunal erred in law by allowing the appeal of the respondent assessee with consequential relief, holding that the issue was no longer res-integra in view of the decision of the Larger Bench of the Tribunal in the case of Juned Bilal Memon v. CCE, Surat II.4. Binding Nature of SDR's ConcessionThe appellant questioned whether a wrong concession on an issue of law given by the Senior Departmental Representative (SDR) before the Tribunal is binding on the department, particularly when the SDR was not authorized to make such a concession.5. Applicability of the Juned Bilal Memon CaseThe appellant contended that the Tribunal erred in relying on the Juned Bilal Memon case, as the facts of that case were different, and the Larger Bench had not decided all the issues but had sent the matter back to the original bench for further orders.6. Justification of CESTAT's Decision Without ReasonsThe appellant questioned whether the Tribunal was justified in law in allowing the appeal filed by the respondent without assigning any reasons and without controverting the findings recorded in the original order.Preliminary Objection on MaintainabilityThe respondent raised a preliminary objection regarding the maintainability of the appeal, arguing that the impugned order relates to the determination of questions having a relation to the rate of duty of excise for the purpose of assessment. Therefore, under Section 35G of the Act, the High Court has no jurisdiction to entertain the appeal, and an appeal against the Tribunal's order would lie before the Supreme Court under Section 35L of the Act.Court's Analysis and DecisionThe Court considered the submissions and authorities cited by both parties. It referred to the Supreme Court's decision in Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs, which held that disputes relating to the classification of goods and whether they are covered by an exemption notification relate directly and proximately to the rate of duty applicable for assessment purposes.The Court observed that the main controversy in the present appeal is a classification dispute, which directly relates to the rate of duty for assessment purposes. Therefore, under Section 35G of the Act, the appeal is not maintainable before the High Court.ConclusionThe Court concluded that the appeal, which raises a classification dispute and has a direct nexus to the determination of the rate of duty for assessment purposes, is not maintainable before the High Court. Consequently, the appeal was dismissed without entering into the merits of the case.