TaxTMI 
TaxTMI 
TaxTMI 
2016 (5) TMI 11
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....of the respondent, at this belated stage, raised a preliminary objection to the maintainability of the appeals on the ground that the controversy involved in the present cases involves the determination of a question having relation to the rate of duty of excise or to the value of goods for the purposes of assessment and hence, in view of the provisions of section 35G of the Central Excise Act, 1944 (hereinafter referred to as "the Act"), this court does not have the jurisdiction to entertain these appeals. 4. Since the question of maintainability touches the very jurisdiction of this court to entertain the appeals, even though raised at a belated stage, such question would be required to be addressed at the outset. 5. Mr. Parikh submitted that in the present case, the controversy relates to the entitlement of the respondent - assessee to the benefit of the exemption Notification No.8/2002-CE dated 1st March, 2002. It was pointed out that it is the case of the appellant that there are clandestine clearances which exceed the limit provided for availing of the benefit under the exemption notification and hence, the respondent is not entitled to the benefit of the said notification ....
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....n exemption notification relating to rate of duty or not, came up for consideration before a Division Bench in the case of Commissioner of Central Excise, Ludhiana v. A.S.T. Paper Mills Ltd., 2008 (227) E.L.T. 189 (P&H) and the Division Bench discussed the matter in detail especially in the light of the judgment of the Supreme Court in the case of Navin Chemicals Manufacturing and Trading Company Limited v. Collector of Customs, 1993 (68) E.L.T. 3 (SC), and found that the question of law formulated by the revenue in the said case referred to exemption under the Notification No.175/86-C.E. as amended by other notifications relating to the rate of duty of excise. The court found that the substantial questions of law raised in the appeals which were stated to arise from the order of the Tribunal related to determination of a question having relation to the rate of duty of excise and, therefore, was of the view that for determination of such a question, remedy lies to the Supreme Court under section 35L of the Act. 5.3 Reliance was placed upon the decision of the Punjab & Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. AST Paper Mills Ltd. (supra) wherein....
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....t since the question raised in the appeal relates to eligibility of the goods manufactured by the assessee for exemption under Notification No.1/93-CE dated 28th February, 1993 and goods were manufactured without payment of duty and no assessment had taken place, the proceedings initiated under section 11-A were for determination of duty liability in which the eligibility of the said goods for exemption was disputed. The court held that the question of exemption is directly and proximately related to the rate of duty for the purposes of assessment of excise duty payable by the respondent and, therefore, the appeal on the said question was clearly excluded under section 35G and could be filed before the apex court under section 35L of the Act. Reliance was also placed upon a decision of the Karnataka High Court reported in 319 E.L.T. A 186, wherein the revenue had preferred an appeal challenging the order of the Tribunal holding that denial of SSI exemption to the assessee was erroneous and granting the benefit of exemption. The Tribunal also proceeded to determine the rate of duty payable in respect of hammer assembly. The question involved in the appeal was whether the Tribunal wa....
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.... Ltd., 2015 (329) E.L.T. 76 (P & H), wherein the court held that the issue in the said lis was regarding benefit of exemption under Notification No.8/2001 available to an assessee, a small scale industry. It was not an issue relating to rate of duty or the value of goods, but only to the effect as to whether the assessee was entitled to exemption granted to a small scale industrial unit on the basis of trademark of another concern. The court held that any decision thereon is relevant only inter-parties and has no wider ramification within the jurisdiction of the court much less, in the country. Therefore, such localized dispute does not fall within the exception to section 35G of the Act and thus, the High Court will have jurisdiction to entertain the appeal in respect of clandestine removal of goods claiming benefit of exemption as per Notification No.8/2001. The learned counsel further drew the attention of the court to the findings recorded by the court in the above decision to point out that the earlier decisions of the Punjab & Haryana High Court taking a contrary view were not referred to nor dealt with therein. 5.8 The learned counsel further submitted that the notification....
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.... 65% and if the above requirement is not met, the Crude Palm Oil would be classified under Heading 151190.90 of the Customs Tariff Act attracting higher rate of customs duty at 75%. Thus, as such there was no dispute with respect to rate of duty at all. The court observed that the main issue was with respect to the percentage of carotenoid content in the imported goods viz., Crude Palm Oil. After considering the expression "determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment" as well as to the decision of the Supreme Court in the case of Navin Chemical Manufacturing and Trading Company Ltd. (supra) as well as the decision of the Supreme Court in the case of New India Assurance Company Limited v. M/s. Zuari Industries Limited, (2009) 9 SCC 70, the court held that in the aforesaid facts and circumstances, it could not be said that the question involved in the appeals had a direct and proximate relationship to the rate of duty and value of goods for the purpose of assessment. The court, accordingly, held that the appeals are maintainable before this court. Mr. Oza submitted that the above decision of this....
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....ent. It is the case of the appellant that the entire amount of sales for which invoices had been issued/chits prepared and recovered from the factories of the respondent situated at Vadu and Jambusar and recovered from other premises and the sale proceeds collected by way of cash/cheques/demand drafts against clandestine sale of illicitly removed ceramic glaze fritz shall be considered as constituting the amount of assessable value and appropriate duties of central excise are required to be recovered from the respondent. The aggregate clearances for both the units during the period 2002-03 and 2003-04 have been worked out at Rs. 2,44,07,713/- and Rs. 2,98,97,843/- respectively, which is more than Rs. 2,00,00,000/- (rupees two crore) and out of the same, the aggregate value of clearances of Rs. 1,00,00,000/- (rupees one crore) is exempted in terms of the notification and for the balance clearances out of the two units, Central Excise duties are recoverable. It was the case of the respondent before the Central Excise authorities that the goods manufactured by M/s. Associated Industries in the Vadu factory cannot be included in the clearance value of the respondent's factory at Jambus....
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....ermination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. Thus, on the conjoint reading of sections 35G and 35L of the Act, it is crystal clear that an appeal shall not lie before the High Court against an order passed by the Appellate Tribunal 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. 11. The question that, therefore, arises is as to whether the controversy before the Tribunal relates to the determination of any question having a relation to the rate of duty or value of goods for the purposes of assessment. The lead decision in this regard is the decision of the Supreme Court in Navin Chemicals Manufacturing and Trading Company Ltd. v. Collector of Customs (supra) wherein it has been held thus:- "6. It is, upon a plain reading of the section, clear that appeals against orders which involve 'determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment' are specially treated and are required to be heard by a Special Be....
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....sment. The court also observed that cases that relate to the rate of customs duty for the purpose of assessment and which relate to the value of goods for the purpose of assessment are advisably treated separately and placed before Special Benches for decision because, they, more often than not, are of importance not only to the importers who are parties thereto but also many other importers who import or propose to import the same or similar goods. Since the decision of CEGAT in such matters would have a wide application, they have, by the terms constituted, to be rendered by Special Benches. 12. From the principles propounded in the above decision what emerges is that for the purpose of falling within the ambit of the phrase "relation to" the controversy involved must have a direct and proximate relationship to the rate of duty and to the value of goods for the purpose of assessment and that the controversy must be such that the decision rendered thereon would have a wide application. The facts of the present case are required to be examined in the light of the above principles. 13. In the opinion of this court, from the facts as appearing from the record, the controversy befor....