TaxTMI 
TaxTMI 
2010 (12) TMI 797
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....r permission of Development Commissioner and without achieving positive Net Foreign Exchange (NFE)? [b] Whether, in the facts and circumstances of the case, the assessee had violated provisions proviso to section 3 of the Central Excise Act, 1944 by not paying excise, duty equal to aggregate duty of customs on entire sale of finished goods in DTA irrespective of the fact that the goods are manufactured from indigenous or imported raw materials? [c] Whether in the facts and circumstances of the case, the learned CESTAT has erred in law by allowing the appeal of the respondent assessee with consequential relief after holding that the issue is no longer res-integra in view of the decision of Larger Bench of the Tribunal in case of Juned Bilal Memon v. CCE, Surat II [2008 (221) E.L.T. 45]? [d] Whether, in the facts and circumstances of the case, the wrong concession on issue of law given by SDR before the CESTAT is binding on the department, particularly when the said SDR is not authorized to do so? [e] Whether the learned CESTAT has erred in law by relying on the decision of Juned Bilal Memon v. CCE, Surat-II [2008 (221) E.L.T. 45] as the facts of the s....
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.... Excise, Aurangabad, 2007 (213) E.L.T. 658 (Bombay), wherein an issue similar to the controversy involved in the present appeal was involved, viz., as to whether the applicable rate of duty would be under Section 3 of the Act or under the proviso to Section 3(1) of the Act. In the said case, such a preliminary objection as regards the maintainability of the appeal before the High Court had been raised by the revenue and the Court had accepted the said contention and upheld the preliminary objection raised by the revenue, by holding that the appeal was not tenable before the Court. 5.  Whereas on the other hand, according to Mr. Varun Patel, learned standing counsel for the appellant has submitted appeal against the impugned order would lie before this Court under Section 35G of the Act. Inviting attention to the proposed questions, it was submitted that question (d) which raises a question as to whether a wrong concession on an issue of law given by Senior Departmental Representative (SDR) before the Tribunal is binding on the Department, particularly when the said SDR was not authorized to do so; as well as question (f) which pertains to the issue as to whether the Tribuna....
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....e said decision of this Court, it is apparent that this Court has jurisdiction to decide this appeal at least to the limited aspect as regards the order of the Tribunal being a non-speaking order, and the matter having been disposed of on a concession. It was, accordingly, urged that the appeal be entertained and disposed of by deciding the aforesaid two issues without entering into the merits of the questions relating to classification of the goods. 8. In rejoinder, Mr. K.B. Trivedi, learned counsel has submitted that as a matter of propriety, the SDR having made a concession, if it is the case of the revenue that the concession made was a wrong concession, it was for the revenue to approach before the same forum to point out the said fact. It is submitted that a cumulative reading of sections 35G and 35L of the Act, rules out the jurisdiction of this Court to deal with an issue relating to the determination of the rate of duty. That questions involved in the present appeal, have a direct nexus to the determination of rate of duty, and as such, the appeal is not maintainable before this Court. 9. Dealing with the contention as regards the order of the Tribunal bein....
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....th the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. (Emphasis supplied) 12. Examining the facts of the present case in the light of the aforesaid decision of the Supreme Court, a bare reading of the proposed questions clearly indicates that the main controversy which arises for determination is in the nature of a classification dispute, which relates dire....
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....ad agreed that the issue involved in the appeal before the Tribunal stood concluded by the decision of the Larger Bench, it was not necessary for the Tribunal to go into facts and contentions in detail. In the circumstances, the submission that the order of the Tribunal is a non-speaking one does not merit acceptance. 16. Another contention raised on behalf of the revenue is that the Tribunal has wrongly placed reliance upon the decision of the Larger Bench of the Tribunal in the case of Juned Bilal Memon v. CCE, Surat-II (supra) inasmuch as, the same would not be applicable to the facts of the present case. It has also been submitted that the decision of the Apex Court in the case of M/s. Virlon Textile Mills (supra) would also not be applicable in the facts of the present case. As to whether the aforesaid decisions would be applicable to the facts of the present case can be examined only by entering into the merits of the case, which has a direct bearing on the question of classification and as such relates to the determination of the rate of duty of the goods in question. In the circumstances, any discussion on the said issue would pertain to determination of a question ....