TaxTMI 
TaxTMI 
2013 (4) TMI 481
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....her in the facts and the circumstances of the case, the Tribunal is justified in the eye of law and has committed the substantial error in law, in holding that the education cess is not leviable under Section 93 (1) of the Finance Act, 2004 upon the 100% EOU in clearance of DTA ?" {III} Whether in the facts and the circumstances of the case, the Tribunal is justified in the eye of law and has committed the substantial error in law, in holding that the notification no. 23/03 EC dated 31.03.2003 of the CBEC is the subordinate piece of legislation and therefore not to be acted upon, over and above the Statute?" {IV} Whether in the facts and the circumstances of the case, the Tribunal is justified in the eye of law and has committed the substantial error in law, in holding that the deemed fiction has to be carried out for the legislative intent logically stretching it to the unrealistic end ?" {V} Whether in the facts and the circumstances of the case, the Tribunal is justified in the eye of law, in ignoring the Notification No. 23/03 CE dated 31.03.2003 which has the satisfaction and self-explanatory answer in entirety to the issues invo....
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....ms the excise duty payable by the respondents, while clearing its goods in DTA area, and that therefore, as per the relevant provisions of the Finance Act 2004, the respondent is liable to pay further education cess at the rate of 2% on the entire aforesaid amount. 5. The case of the respondents however is that the respondents having already suffered education cess on the basic customs duty and also on the CVD payable, there is thereafter no additional liability to pay education cess . 6. The Department on the basis of above diversion of views, issued a notice dated 3 rd March 2006 and called upon the respondents why - (i) Education Cess of Rs. 1,98,122/= not paid on DTA clearances during the period from 01.04.2005 to 31.12.2005 should not be demanded and recovered from them under Section 11A of the Central Excise Act 1944; (ii) Penalty should not be imposed upon them under Rule 25 of Central Excise Rules 2004; (iii) Interest on amount of duty as per ( i) above as contemplated under Section 11AB of Central Excise Act, 1944 for Central Excise Duty should not be demanded & recovered. 7. The respondent-manufacturer opposed the s....
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....of the Act. In support of the contention, counsel relied on the following decisions : - 12. In case of C.C.E., Mangalore vs. Mangalore Refineries & Petrochemicals Limited , reported in - wherein , it was observed as under :- "42. Broadly the following disputes do not fall within the jurisdiction of High Court under Section 35(g) of the Act :- (a) Dispute relating to the duty of excise payable on any goods. (b) The value of the goods for the purposes of assessment. (c) A dispute as to the classification of goods. (d) Whether those goods are covered by an exemption notification or not. (e) Whether the value of goods for the purposes of assessment is required to be increased or decreased. (f) The question of whether any goods are excisable goods or not. (g) Whether a process is a manufacturing process or not, so as to attract levy of excise duty. (h) W....
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....ch arises for determination is in the nature of a classification dispute, which relates directly and proximately to the rate of duty applicable for the purpose of assessment. 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. Limited v. Collector of Customs [Supra], 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." 14. In case of Commissioner of Central Excise & Customs v. Swiss Glass Coat Equipments Limited , reported in [2011 (273) ELT 364 ( Guj)] wherein, the Division Bench of this Court held that appeal which involves the question whether any activity amounts to manufacturing or not would not be maintainable be....
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....on of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment. Since admittedly we are not concerned with the value of goods for the purpose of assessment, the question is - is the order of the Tribunal one which relates to the determination of any question having relation to the rate of duty of excise. Answer to this question would decide whether the present appeals are maintainable before this Court or not. 18. We may notice that exclusion clause in sub-section (1) of Section 35G is worded in an expansive manner and excludes all appeals arising out of orders of the Tribunal relating among other thing to the determination of any question having a relation to the rate of duty of excise. In other words, what is excluded from the purview of the High Court's jurisdiction is not merely an order of Tribunal which decides the rate of duty of excise but any order which concerns determination of any question which has relation to such rate of duty of excise. Expression "any question having a relation to the rate of duty" is a wide one. 19. With above discussion, if we revert back to the facts of the case, as already noted, t....