2010 (12) TMI 437 - HC - Central Excise

Appeal to High Court - The learned CESTAT was holding that National Calamity Contingent Duty (NCCD) is not leviable in respect of goods (Polyester Filament Yarn) clearance to 100% EOU - The issue involved in the present case pertains to the applicability of Circular No. 641/32/2002-CX. dated 26th June 2002 whereby goods exported under bond have been exempted under levy to NCCD - The applicability of a notification or a circular which has a bearing on the determination of the rate of duty is a question which has a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment - Hence in the light of the provisions of Section 35G read with Section 35L of the Act this Court has no jurisdiction to entertain the appeal - Hence the appeal is dismissed as not maintainable with no order as to costs.

Summary

Issues:
- Jurisdiction of the Court under Section 35G of the Central Excise Act, 1944 regarding the levy of National Calamity Contingent Duty (NCCD) on Polyester Filament Yarn clearance to 100% EOU.
- Maintainability of the appeal before the High Court in light of the provisions of Section 35G read with Section 35L of the Act.

Analysis:

1. Jurisdiction of the Court under Section 35G regarding NCCD levy:
The appeal challenged an order proposing questions on the levy of NCCD on Polyester Filament Yarn clearance to 100% EOU. The respondent argued that the appeal should be before the Supreme Court, citing Section 35G and Section 35L of the Act. The Tribunal's decision in favor of the assessee was based on a previous accepted decision by the revenue, creating a non-discriminatory argument. However, the appellant contended that the controversy falls within the High Court's jurisdiction. The facts revealed that the assessee did not pay NCCD on clearances, leading to a demand upheld by the Commissioner (Appeals) but overturned by the Tribunal.

2. Maintainability of the appeal before the High Court:
The Court analyzed the issue of maintainability in light of relevant judicial pronouncements. Referring to Circular No. 641/32/2002-CX exempting goods exported under bond from NCCD, the Court highlighted the Supreme Court's stance on disputes related to classification and exemption notifications affecting the duty rate. Citing cases like Navin Chemicals and Sterlite Optical Technologies, the Court emphasized that questions on the applicability of notifications impacting duty rates directly relate to the assessment process. Consequently, the Court concluded that the appeal, concerning the applicability of the circular affecting the duty rate, falls outside its jurisdiction under Section 35G and Section 35L of the Act.

In conclusion, the High Court dismissed the appeal on grounds of lack of maintainability without delving into the case's merits, emphasizing that the issue of NCCD levy on Polyester Filament Yarn clearance to 100% EOU falls under the Supreme Court's jurisdiction due to its direct impact on the determination of duty rates for assessment purposes.