2016 (5) TMI 11 - HC - Central Excise

Maintainability of appeal before the High Court - Question relating to availability of exemption notification versus question relating to Determination of rate of duty of excise or the value of goods for assessment - SSI Exemption - Held that - Section 35G of the Act expressly excludes orders passed by the Appellate Tribunal 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. Correspondingly, section 35L of the Act provides for appeal to the Supreme Court against an order passed by the Appellate Tribunal 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. Thus, on the conjoint reading of sections 35G and 35L of the Act, it is crystal clear that an appeal shall not lie before the High Court against an order passed by the Appellate Tribunal 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. Whether the clearances made by the respondent for the period under consideration, in fact, exceeded the limit stipulated under the exemption notification or were within such limit - Held that - the question of applicability of the exemption notification does not arise, inasmuch as, it is not the case of the revenue that the assessee is not entitled to the benefit of the exemption notification. At the cost of repetition, it is reiterated that the only question that arises for consideration in these appeals is as to whether the clearances made by the assessee for the period under consideration have exceeded the limit specified for being entitled to the exemption notification. The controversy involved in the present cases does not relate to the determination of any question having a relation to the rate of duty or value of goods for the purposes of assessment, and as such, the appeals have rightly been filed before this court under section 35G of the Act. - Decided against the revenue

Summary

Issues Involved:
1. Maintainability of the appeals under Section 35G of the Central Excise Act, 1944.
2. Entitlement to the benefit of the exemption Notification No.8/2002-CE dated 1st March, 2002.
3. Allegations of clandestine clearances exceeding the exemption limit.
4. Clubbing of clearances from two different units for the purpose of exemption limit.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeals under Section 35G of the Central Excise Act, 1944:
The respondent raised a preliminary objection to the maintainability of the appeals on the grounds that the controversy involves the determination of a question relating to the rate of duty of excise or the value of goods for assessment purposes. According to Section 35G of the Act, such matters fall under the jurisdiction of the Supreme Court as per Section 35L of the Act. The court acknowledged that the question of maintainability touches the very jurisdiction of the court and must be addressed first. The court examined various precedents, including decisions from the Andhra Pradesh High Court, Punjab & Haryana High Court, Allahabad High Court, and Karnataka High Court, which supported the view that issues relating to the rate of duty or value of goods for assessment should be appealed to the Supreme Court.

2. Entitlement to the Benefit of the Exemption Notification No.8/2002-CE dated 1st March, 2002:
The appellant contended that the respondent was not entitled to the exemption due to alleged clandestine clearances exceeding the exemption limit. The court noted that the controversy relates to the respondent's entitlement to the benefit of the exemption notification, which depends on whether the clearances exceeded the prescribed limit. The court found that the Tribunal had set aside the demand of duty, interest, and penalty on the grounds that the charges of clandestine removal were not proved.

3. Allegations of Clandestine Clearances Exceeding the Exemption Limit:
The appellant argued that the respondent had engaged in illicit manufacture and clandestine removal of goods without including their value in the aggregate clearance value, thereby exceeding the exemption limit. The Tribunal, however, found that the charges of clandestine removal were not substantiated by the evidence on record, and therefore, the respondent was entitled to the benefit of the exemption notification.

4. Clubbing of Clearances from Two Different Units for the Purpose of Exemption Limit:
The appellant claimed that the clearances from the respondent's two units, Vadu and Jambusar, should be clubbed, which would result in exceeding the exemption limit. The respondent countered that the clearances from the Vadu factory should not be included in the clearance value of the Jambusar factory. The Tribunal found that the clearances did not exceed the exemption limit when considered separately.

Conclusion:
The court concluded that the controversy did not relate to the determination of any question having a relation to the rate of duty or value of goods for assessment purposes. The issue was a pure question of fact regarding whether the clearances exceeded the exemption limit. Therefore, the appeals were maintainable under Section 35G of the Act. The preliminary objection to the maintainability of the appeals was rejected, and the appeals were set for further hearing.