2011 (4) TMI 603 - HC - Central Excise

Appeal to High Court - Percentage of waste is more than 7.5% - Whether the demand of duty and penalty on the wastage claimed by the assessee, which is more than 7.5% is leviable to excise duty - The said question falls squarely within the exception carved out in Section 35G, 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 purposes of assessment , and the High Court has no jurisdiction to adjudicate the said issue - The appeal lies to the Apex Court under Section 35L which alone has exclusive jurisdiction to decide the said question.

Summary

Issues:
1. Appeal challenging Tribunal's order on clandestine removal of inputs and duty demand.
2. Burden of proof on Revenue regarding clandestine removal.
3. Confiscation and penalty imposed by Commissioner.
4. Appellate authority setting aside demand and penalty.
5. Issue of duty and penalty on wastage exceeding 7.5%.
6. Jurisdiction of High Court to adjudicate on excise duty matters.
7. Maintainability of the appeal and reserved liberty to approach Apex Court.

Analysis:
The appeal before the High Court was lodged by the Revenue, contesting the Tribunal's decision that the Revenue failed to prove clandestine removal of inputs, leading to an unjustified duty demand. The case involved an assessee manufacturing HDPE/PP woven fabrics and sacks, availing Cenvat credit on duty paid for granules. Following investigations and a show cause notice, the Commissioner confirmed the duty demand, imposed a penalty, and directed confiscation, which the assessee appealed against.

Upon re-examination, the appellate authority found the Revenue had not met its burden of proving clandestine removal, deeming the demand and penalty illegal, consequently overturning the Commissioner's order. The core issue revolved around whether duty and penalty were applicable on wastage exceeding 7.5%. However, the High Court determined that this matter fell under Section 35G's exception, indicating lack of jurisdiction to rule on excise duty or valuation matters, citing precedent Commissioner of Central Excise v. Mangalore Refineries and Petrochemicals Ltd.

Consequently, the High Court dismissed the appeal as not maintainable, directing the Revenue to seek recourse in the Apex Court for resolution. This decision was based on the exclusive jurisdiction of the Apex Court under Section 35L to decide questions related to excise duty, leaving the Revenue with the option to pursue the matter further in the appropriate legal forum.