TaxTMI 
TaxTMI 
2014 (5) TMI 870
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....e assessee that within the meaning of section 35G(1) of the Central Excise Act, 1944, an appeal shall not lie before this Court against 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 purpose of assessment. Hence, it has been urged that the appeal is not maintainable. In order to determine the correctness of the preliminary objection, a brief reference to the factual conspectus would be in order. The respondent which was a 100% Export Oriented Unit (EOU) was engaged in the manufacture and export of excisable goods covered under Chapter 29, "Organic Chemicals", of the Central Excise Tariff Act, 1985. From 26 March 2007 the respo....
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....ts order dated 5 September 2013 allowed the appeal of the respondent. The Tribunal held that during the intervening period between the date when the No Objection Certificate was granted by the central excise authorities and the date of issue of the final de-bonding order by the Development Commissioner, it was open to an EOU to export the finished goods under a claim for advance authorisation and no excise duty could be charged on such goods as they had not been cleared under the DTA. This decision of the Tribunal is in question at the behest of the revenue. Section 35G(1) of the Central Excise Act, 1944 provides as follows:- "Section 35G(1): An appeal shall lie to the High Court from every order passed in appeal by the Appellate Trib....
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....rder dated 18 August 2012 similarly stated that the issue before him was as follows : "I find that the issue involved in this appeal is whether at the time of de-bonding, the duty is required to be paid in respect of the finished goods in stock in accordance with the proviso to Section 3(1) of the Central Excise Act, 1944" According to the assessee, the answer to the aforesaid issue requires an adjudication of the following, amongst other things : "(a) Determination of the status of the unit as to whether it is a EOU or a DTA as on 31.03.2011, when the duty was demanded on finished goods lying in stock; (b) Determination of rate of duty whether duty applicable as per under section 3(1) of the Central Excise Act, the determinatio....
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....ty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129D, it is proper that the said exp....
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....preme Court has been followed by a Division Bench of the Karnataka High Court in C.C.E. Mangalore Vs. Mangalore Refineries & Petrochemicals Ltd. 2011 (270) ELT 49 (Kar. In a judgment of the Division Bench of the Bombay High Court in Sterlite Optical Technologies Ltd. Vs. Commissioner of Central Excise, Aurangabad 2007 (213) ELT 658 (Bom.), it was held that the determination of the status of a unit would be one of the steps in the process of assessment : "23. Considered on the above backdrops, the question of determination of status of the subject Unit will be one of the steps in the process of assessment. This exercise would be an exercise; which can be said to be part of the assessment. In this view of the matter, in our view, the di....