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2013 (6) TMI 120 - HC - Central ExciseCondonation of delay - SSI Exemption - Brand name - purification of water - held that - The reasons given in the affidavit explaining the delay are bonafide and the delay was due to error and mistakes which took place in finalising the draft and it cannot be said that the appellant was negligent in filing the appeal. Sufficient grounds have been made out to condone the delay in filing the appeal. - Delay condoned - decided in favor of assessee. Maintainability of appeal before High Court - SSI Exemption - whether issue of SSI exemption is an issue of determination of rate of duty - held that - since the question raised in the appeal relates to eligibility of the goods manufactured by the assessee for exemption under Notification No.1/93-C.E. dated 28.2.1993 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 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. The appeal on the said question is clearly excluded under Section 35-G and can be filed by the revenue before the Apex Court under Section 35-L of the Act. Thus the preliminary objection of the respondent regarding maintainability of appeal is upheld and Central Excise Appeal Defective No.- 402 of 2005 is held not maintainable under Section 35-G of the Act. - The appeals are maintainable before Apex Court - Decided against the revenue.
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Eligibility for exemption under Notification No.01/93-CE dated 28.02.1993. 3. Maintainability of the appeal under Section 35-G of the Central Excise Act, 1944. Detailed Analysis: 1. Condonation of Delay in Filing the Appeal: The Central Excise Appeal Defective No.402 of 2005 was filed with a delay of 99 days. The appellant filed Civil Misc. (Delay Condonation) Application No.249294 of 2005 supported by an affidavit explaining the reasons for the delay. The affidavit detailed the sequence of events leading to the delay, including summer vacations and procedural errors. The respondent countered that the delay was due to gross negligence. However, the court found the reasons bona fide and not due to negligence, thus condoning the delay and allowing the delay condonation application. 2. Eligibility for Exemption Under Notification No.01/93-CE Dated 28.02.1993: The assessee, M/s Eco Products India Pvt. Ltd., manufactured water filters under the brand name "AQUARIUS," allegedly owned by M/s Singer India Limited. The issue was whether the assessee could avail of the exemption under Notification No.01/93-CE despite using a brand name owned by another entity. The Assistant Commissioner confirmed the demand for duty, which was upheld by the Commissioner (Appeals). However, the Customs, Excise and Gold (Control) Appellate Tribunal allowed the assessee's appeal. The Commissioner, Central Excise, Meerut, sought the High Court's opinion on whether the goods were branded and thus ineligible for exemption under the notification. 3. Maintainability of the Appeal Under Section 35-G of the Central Excise Act, 1944: The primary legal issue was whether the appeal filed by the revenue under Section 35-G was maintainable, given that it involved questions related to the rate of duty. The court examined whether the questions raised had a direct and proximate relation to the rate of duty for the purposes of assessment. The court referred to various judgments, including the Supreme Court's decision in Naveen Chemicals Mfg. and Trading Co. Ltd. v. Collector of Customs, which held that disputes regarding classification and exemption notifications relate directly to the rate of duty. The court concluded that the question of eligibility for exemption under the notification was directly related to the rate of duty, thus falling within the exclusionary clause of Section 35-G. Consequently, the appeal should have been filed under Section 35-L before the Supreme Court, not the High Court. Conclusion: The court upheld the preliminary objection regarding the maintainability of the appeal under Section 35-G, dismissing Central Excise Appeal Defective No.402 of 2005 as not maintainable. The Central Excise Reference No.11 of 2004 was dismissed as infructuous, and Central Excise Reference Application Defective No.11 of 2001 was rejected. The parties were directed to bear their own costs.
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