2008 (2) TMI 364 - HC - Central Excise

Respondents has raised objection to the maintainability of the appeal u/s 35(G)(1) before the HC on the ground that the appeal would lie before the SC in view of the S. 35(L)(b) - According to respondents, the order passed by the CESTAT and impugned in the present appeal relates, among other things, to the determination of a question having a relation to the rate of duty of the excise objection of respondents is correct therefore, revenue s appeal is dismissed as not maintainable

Summary

Issues involved:
- Jurisdiction of appeal under Section 35(G)(1) of the Central Excise Act, 1944 before the High Court or the Supreme Court.
- Maintainability of the appeal before the High Court based on the relation to the rate of duty of excise.

Analysis:
1. The appeal was filed by the Commissioner of Central Excise, Nagpur under Section 35(G)(1) of the Central Excise Act, 1944 against the orders passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT). The respondents raised a preliminary objection regarding the maintainability of the appeal before the High Court, arguing that it should lie before the Supreme Court based on the provisions of Section 35(L)(b) of the Act. The issue in question related to the determination of the rate of duty of excise, specifically whether the benefit of Notification No.8/1997 applied to the goods cleared by the respondent.

2. The respondent, a 100% export-oriented unit, had a dispute with the Department regarding the clearance of goods to Tata Iron & Steel Company Ltd. (TISCO) and the applicability of duty exemptions. The Central Excise Authorities issued a Show Cause Notice demanding full Central Excise Duty on the clearances made by the respondent. The Commissioner confirmed the demand, leading to separate appeals by the respondent, which were allowed by the CESTAT. The CESTAT held that the benefit of clearance under Notification No.8/1997 could not be denied as there was no finding of duty-free imported raw material use.

3. The main contention revolved around whether the appeal should be heard by the High Court or the Supreme Court based on the relation to the rate of duty of excise. The appellant argued for the High Court's jurisdiction, while the respondent contended that the issue directly related to the rate of duty payable by the respondent. Citing previous judgments, the respondent maintained that the appeal should be heard by the Supreme Court due to the direct relation to the rate of duty.

4. Upon considering the arguments and provisions of the Act, the Court noted that appeals relating to the determination of the rate of duty of excise should be heard by the Supreme Court, not the High Court. Referring to previous cases, the Court emphasized that issues directly related to the rate of duty and assessment value fall under the Supreme Court's jurisdiction. Therefore, the Court dismissed the appeal, agreeing with the respondent's argument on the maintainability of the appeal before the High Court.

5. In conclusion, the Court followed the precedent set by previous judgments and the provisions of the Act to determine that the appeal, concerning the rate of duty payable by the respondent, was not maintainable before the High Court. The issue directly related to the rate of duty of excise, necessitating the appeal to be filed before the Supreme Court. As a result, the appeal was dismissed with no order as to costs.