2017 (4) TMI 942 - HC - Central Excise

Maintainability of appeal - project import - the subject issue is pending before the Apex Court in the case of M/s. Om Metals Spml Jv Unit 2 Versus CCE & ST, Jaipur 2013 (11) TMI 1361 - CESTAT NEW DELHI - Held that - Since the very subject issue is pending before the Apex Court, of which we have made a reference, we consider it appropriate to dispose of the instant appeal on the terms referred to supra and it will be open for the parties to move an application for revival of the proceedings, if so required, after decision of the Apex Court - application disposed off.

Summary

Issues:
Classification of goods under Central Excise Tariff, denial of exemption based on Project Import Regulation conditions, maintainability of present appeal, pending issue before the Apex Court, disposal of instant appeal pending Apex Court decision.

Classification of Goods:
The judgment discusses the classification of goods under the Central Excise Tariff, emphasizing that goods manufactured in India cannot be classified under Heading 98.01 of the Central Excise Tariff, which exists in the Customs Tariff only. It highlights that denial of exemption based on non-fulfillment of Project Import Regulation conditions is not sustainable when the conditions of the relevant notification are met. The judgment cites precedents where similar issues were resolved in favor of the assessee, allowing exemption under the relevant notification.

Denial of Exemption and Precedents:
The judgment refers to a case where the Tribunal allowed exemption under Notification 6/2006 to an assessee by fulfilling the conditions of the Project Import Regulation. It also mentions another decision where the Tribunal held that the appellants were eligible for exemption under the same notification. These precedents support the argument that denial of exemption based on non-fulfillment of Project Import Regulation conditions is not justified when the requisite criteria are met.

Maintainability of Appeal:
The advocate for the respondent argues that the present appeal is not maintainable, suggesting that the department can file an appeal before the Apex Court under Section 35-L of the Central Excise Act, 1944. The judgment acknowledges this argument but refrains from delving into the controversy at this stage, leaving it open to be examined in other appropriate proceedings.

Pending Issue Before the Apex Court:
The judgment notes that the subject issue is pending before the Apex Court in a civil appeal filed by the Commissioner of Central Excise and Service Tax, Jaipur-I against a final order of CESTAT. Given the pending nature of the issue before the Apex Court, the High Court decides to dispose of the instant appeal on the terms mentioned, allowing parties to move an application for revival of proceedings after the Apex Court's decision.

Disposal of Instant Appeal:
In light of the pending issue before the Apex Court, the High Court deems it appropriate to dispose of the instant appeal as mentioned earlier in the judgment. The stay application is also disposed of accordingly, with the option for parties to seek revival of proceedings post the Apex Court's decision.