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2016 (9) TMI 618 - HC - CustomsMaintainability of appeal - Section 35G of the Central Excise Act, 1944 - Demand of differential duty - denial of Exemption Notification No.08/1996 dated 23.07.1996 - tenacity with 14% variance - Nylon Filament Yarn - Chapter 54 of the Central Excise Tariff Act, 1985 - test of samples - denier range of yarn above permissible limit - Whether the appeal filed by the appellant under Section 35G of the Central Excise Act 1944, is maintainable when the same relates to the rate of duty of excise, as raised in the substantial question of law by the appellant? - Held that - Section 35G makes it clear that an appeal to High Court shall lie, provided it 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 the purpose of assessment - the issue relates to the claim for exemption under the exemption notification, whether exemption applicable to the appellant or not. The conditions in the notification for the tolerance limit of nylon yarn have not been fulfilled by the appellant. Any dispute relating to rate of duty, cannot be decided under Section 35G of the Act - appeal not maintainable. Maintainability - appeal pending for a period of 10 years - want of jurisdiction - Held that - where there is a lack of inherent jurisdiction of the Court, the decree is then said to be a nullity . Just because the case pending for a period of 10 years, it cannot be made maintainable as any judgement made in the lack of jurisdiction will be a nullity anyway - appeal not maintainable. Merits of the case need not be considered - appeal dismissed - decided against appellant.
Issues Involved:
1. Reliance on test reports of samples drawn from one batch for subsequent batches. 2. Marginal variation from tolerance allowed in test reports. 3. Application of the First in and First out method for deemed export production. 4. Consideration of differential duty demands not part of the impugned proceedings. 5. Maintainability of the appeal under Section 35G of the Central Excise Act, 1944. Issue-wise Detailed Analysis: 1. Reliance on Test Reports of Samples Drawn from One Batch for Subsequent Batches: The appellant contended that the test reports of samples from one batch should not be applied to subsequent batches due to varying process parameters affecting the denierage of the yarn. The appellant argued that the denier of the yarn is influenced by factors such as the type of chips, temperature of extrusion, metering pump frequency, and draw ratio. The appellant cited the case of Ramalinga Choodambikai Mills Ltd. vs. Government of India to support this argument. 2. Marginal Variation from Tolerance Allowed in Test Reports: The appellant argued that the test reports showed only marginal variations from the tolerance allowed under the exemption notification and that these should not have been the basis for rejecting the exemption claim. The appellant emphasized that changes in process parameters could result in variations in denierage, and such marginal variations should be considered acceptable. 3. Application of the First in and First out Method for Deemed Export Production: The appellant contended that the Tribunal erred in not considering the First in and First out method, as accepted by the Supreme Court in the case of TELCO vs. Municipal Commissioner, Thane. The appellant argued that the rejection of their plea without considering this method was incorrect and that the benefit of deemed export production should have been granted. 4. Consideration of Differential Duty Demands Not Part of the Impugned Proceedings: The appellant raised the issue that the Tribunal considered and confirmed differential duty demands that were not part of the original proceedings but were subject to parallel proceedings. The appellant argued that this amounted to duplication of demand and should not have been included in the demands confirmed by the Assistant Commissioner. 5. Maintainability of the Appeal Under Section 35G of the Central Excise Act, 1944: The respondent raised a preliminary objection regarding the maintainability of the appeal under Section 35G of the Central Excise Act, 1944. The respondent argued that the appeal involved questions relating to the rate of duty of excise or the value of goods for assessment purposes, which are not within the jurisdiction of the High Court under Section 35G. The respondent relied on the decision of the Supreme Court in Naveen Chemicals and the decision of the Madras High Court in Commissioner of Central Excise vs. Vadapalani Press to support this argument. The court considered the preliminary objection and concluded that the appeal was not maintainable under Section 35G as it related to the rate of duty of excise. The court noted that Section 35G explicitly excludes appeals relating to the determination of any question having a relation to the rate of duty of excise or the value of goods for assessment purposes. The court also referred to the statutory definition and judicial precedents indicating that questions relating to the applicability of an exemption notification directly relate to the rate of duty and are thus outside the jurisdiction of the High Court under Section 35G. Conclusion: The court dismissed the appeal on the grounds of lack of jurisdiction under Section 35G of the Central Excise Act, 1944, without going into the merits of the case. The court held that any judgment passed without jurisdiction would be a nullity, and therefore, it could not entertain the appeal despite it being pending for ten years. The appeal was dismissed with no order as to costs.
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