2008 (2) TMI 207

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....ribunal') by raising the following substantial question of law:- Whether a plant which is entirely dependent on another unit for its operation having common power connection, common boiler, common storage for raw material, common water treatment plant, common entrance and sharing common financial status and when the capital goods were purchased in the name of the old unit who had also availed credit of duty paid thereon, can be treated as an independent factory for allowing the benefit of the exemption notification Nos.6/2000-C.E., dated 1.3.2000, 3/2001-C.E., dated 1.3.2001 and 6/2002-C.E. dated 1.3.2002? (Emphasis added) 2. After notice of motion, Mr.Vishwanath Shukla, Advocate, puts in appearance on behalf of the respondent and at the ....

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....a relation to the rate of duty of excise. He further submits that granting or not to granting the benefit of certain notification is a dispute pertaining to the rate of excise duty. If the benefit is granted under the exemption notification, then less duty will be chargeable, if not, then higher duty will be chargeable. Therefore, in nutshell the dispute in granting or not to granting the benefit of exemption notification is a determination of the question relating to the rate of duty of excise. He submits that in such cases the appeal lies to the Hon'ble Supreme Court under Section 35-L of the Act which provides that "an appeal shall lie to the Supreme Court from (b) any order passed by the Appellate Tribunal relating, among other things, ....

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....involved in this appeal is with regard to the determination of the rate of excise duty. However, learned counsel for the appellant could not cite any contrary judgment to the judgment cited by the counsel for the respondent. 4. After considering the preliminary objections raised by the learned counsel for the respondent, we are of the opinion that the same deserve to be accepted. If we peruse the substantial question of law formulated by the appellant, it is clear that the appellant has raised the question that the assessee is not entitled for the benefit of exemption under notification Nos.6/2000-C.E., dated 1.3.2000, 3/2001-C.E., dated 1.3.2001 and 6/2002-C.E., dated 1.3.2002. If the contention of the appellant is accepted then it will ....

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.... 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 expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with 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. Wh....