TaxTMI 
TaxTMI 
2016 (9) TMI 618
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.... were done provisionally, since the testing process had to be carried on. The Exemption Notification No. 08/96 dated 23.07.1996, allowed exemption to Nylon Filament Yarn of 210 denier with 14% variance. In order to ascertain the eligibility for exemption, samples of low tenacity, Nylon Filament Yarn manufactured by the appellant were drawn, on five occasions during the relevant period and that the samples were subjected to test, by the Chemical Examiner, Custom House, Chennai. The following are the details of the test results :- Sl. No. Test Memo No. Date of Drawal of Sample Batch No. Chemical Examiner's Test Result in Denier 1. 1/96-97 07.06.1996 C6P 008-0525 224.8 2. 2/96-97 26.07.1996 C6G056-3239 228.6 3. 3/96-97 29.08.1996 R6H189-4230 224.1 4. 4/96-97 01.10.1996 C6K 001-0137 225 5. 5/96-97 31.12.1996 C6M 080-5791 212.1 3. When the test reports revealed that the denier count was above the tolerance limit, re-test was requested and re-test was also done by Chief Chemical Examiner of Central Revenue Customs Laboratory, New Delhi. Subsequently, samples were again tested by the National ....
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....ed the instant appeal and this Court admitted the appeal, framing the following substantial questions of Law :- i.Whether the Tribunal was correct in relying on test reports of the samples drawn with reference to one batch for subsequent batches, until the next sample was drawn ? ii.Whether the Tribunal was right in relying on test reports which only show marginal variation from the tolerance allowed and rejecting the substantive claim for relief, as sought for by the appellants ? iii.Whether or not the First in and First out method, as accepted by Supreme Court in 1993 Suppl. (1) SCC 361 should have been followed by the Tribunal in the facts and circumstances of this case in granting benefit in respect of supply of excisable goods for deemed export production ? iv.Whether the Tribunal is correct in considering and confirming differential duty demands which are not part of the impugned proceedings but are subject to a parallel proceedings ? 6. It is the contention of the appellant that the test reports of the samples taken for one particular batch, cannot be applied for the yarn of the next batch, as the process parameters may vary for each ba....
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....espondent relied on the decision of the Hon'ble Supreme Court, in the case of Naveen Chemicals. Learned counsel also relied on another decision of this Court in the case of the Commissioner of Central Excise vs. Vadapalani Press reported in [2014-TIOL-2208-HC-MAD-CX]. 10. Learned counsel for the 2nd respondent also drew the attention of this Court to a decision in SRF Ltd.& Ors. vs. Commissioner of Customs and Ors., reported in 2015 (318) ELT 607 SC, wherein, the appellant itself agitated the non-grant of benefit of an exemption notification before the Hon'ble Supreme Court, by invoking Section 35L of the Central Excise Act, 1944. In the light of the above said decisions of this Court and the Hon'ble Supreme Court, learned counsel for the 2nd respondent contended that the appeal filed by the appellant, under Section 35G, is not maintainable in this High Court. 11. Without prejudice to the abovesaid preliminary objections, learned counsel for the 2nd respondent would also submit on merits of the case that the tests were repeated, at the request of the appellant, by getting the same tested at CRCL, New Delhi and similarly, at the request of the appellant/ assessee s....
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....Central Government Standing Counsel for the 2nd respondent. 13. At the outset, the preliminary objection raised by the 2nd respondent regarding the maintainability of the appeal, in view of the power under Section 35G of the Central Excise Act, 1944 has to be considered. As per the powers conferred under the proviso to subsection (4) of Section 35G, High Court can frame additional questions of law, at the time when the matter is being heard. On the facts and circumstances of this case and having regard to the rival submissions and on the light of the above cited decisions of both sides and keeping in mind the substantial questions of law framed by this Court, the point that arises for consideration is, what would be the rate of duty payable by the appellant. Therefore, this Court deems it fit to frame the following additional substantial question of law. "Whether the appeal filed by the appellant under Section 35G of the Central Excise Act 1944, is maintainable when the same relates to the rate of duty of excise, as raised in the substantial question of law by the appellant. " 14. Section 35G of the Central Excise Act 1944, reads as follows :- SECTION 35G. A....
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....he value of goods for the purpose of assessment. In the instant appeal, the issue relates to the claim for exemption under the exemption notification, whether applicable to the appellant or not. The conditions in the notification for the tolerance limit of nylon yarn have not been fulfilled by the appellant. Therefore, any dispute relating to rate of duty, cannot be decided under Section 35G of the Act. 16. As stated supra, in the case of the Commissioner of Central Excise vs. Vadapalani Press, reported in [2014-TIOL-2208-HC-MAD-CX], at paragraph 4, this Court has followed the decision of the Hon'ble Supreme Court in the case of Naveen Chemicals Manufacturing and Trading Co.Ltd. vs. Collector of Customs, MANU/SC/0571/1993 : 1993 (68) ELT 3 (SC), wherein it is held as follows: - "4. At the outset, the learned counsel for the first respondent objected to the maintainability of the appeal before this Court on the above questions of law raised by the department. It is the plea of the learned counsel for the first respondent that Section 35G of the Central Excise Act, 1944 provides that an appeal on the issue relating to rate of duty of excise or value of goods for purpo....
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.... CEGAT: does the question that requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods. (emphasis supplied) 5. The present appeal is filed under Section 35G of the Central Excise Act, 1944 and it is apposite to refer to Section 35G(1) of the Central Excise Act, 1944, which reads as under: Section 35G. Appeal to High Court.(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being 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 purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (emphasis supplied) 6. In the present case, the issue that arises for consideration is what will be the rate of duty that is payable by the first respondent, but for the notification in question. Therefore, the objection of the learned counsel for the first respondent is sustained. 7. The above said view of thi....
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....e provisions of Section 35G read with Section 35L, this Court has no jurisdiction to entertain the appeal. 19. The second limb of contention of the appellant, as the appeal is pending for a period of 10 years, the same need not be dismissed, for want of jurisdiction now. If we proceed with the merits of the case, having no jurisdiction to entertain an appeal, then the judgment passed by this Court, would amount to nullity. At this juncture, it is useful to refer to the principles of law laid down by this Court and the Hon'ble Supreme Court, in the following decisions : 1. Chandrabhai K. Bhoir & Ors. vs. Krishna Arjun Bhoir & Ors., relying on Chief Justice of A.P vs. L.V.A Dixitulu, reported in (1979) 2 SCC 34. 2. Union of India vs. Pramod Gupta (2005) 12 SCC 1; and 3. National Institute of Technology vs. Niraj Kumar Singh reported in (2007) 2 SCC 481. In the above judgments, it has been held that an order passed without jurisdiction, is nullity. 20. In the decision of the Hon'ble Supreme Court in the case of State of Haryana v. Kartar Singh reported in (2013) 11 SCC 375, it is observed as follows :- "20. The legal position is no ....