2017 (4) TMI 695 - HC - Central Excise

Benefit of N/N. 50/2003-CE dated 10.06.2003 - setting up of new industrial unit - enhancement of installed capacity - manufacture of LPG Cylinders - the stand of the Department was that there were two types of manufacturing divisions namely the Cylinder Division and the Conductor Division. Therefore the installed capacity must be of both the Divisions together. The enhancement of installed capacity only relating to the Cylinder Division would not suffice to claim benefit under Clause 2(b). Whether these appeals lie under Section 35G of the Excise Act and is maintainable? - Held that - in a case CCE Mangalore vs. Mangalore Refineries but the assessee questioned the maintainability of the appeal also on the ground that even if the goods were exigible the further question would arise as to whether the duty payable was completely exempted by way of a notification. By virtue of sub-section (2) to Section 35L the courts are obliged to proceed on the basis that a decision relating to taxability or excisability is to be treated as a question which has a relation with the rate of duty. This is virtually a deeming provision and therefore we need not actually explore the question even as to whether it really has a relation with the rate of duty. The appeals are not maintainable for the reason that the appeals are maintainable only before the Supreme Court under Section 35L of the Excise Act in the context of the interpretation we have placed on the words taxability and excisability . We need not therefore further explore the question whether de hors sub-section (2) the case would fall under sub-section (1) of Section 35G or Section 35L as the case may be. Appeal dismissed being not maintainable.

Summary

Issues Involved:
1. Whether the addition of new items in the existing Central Excise Registration Certificate required an increase in the factory's capacity by 25% as per Notification No. 50/2003-CE.
2. Whether the commencement of commercial production before 07.01.2003 disqualified the respondent from availing the benefits of Notification No. 50/2003-CE.
3. Whether the appeals lie under Section 35G of the Central Excise Act, 1944, or should be directed to the Supreme Court under Section 35L.

Issue-wise Detailed Analysis:

1. Addition of New Items and Capacity Increase Requirement:
The court examined whether the addition of ACSR Conductors and Steel Tubular Poles to the existing Central Excise Registration Certificate of M/s Tirupati LPG Cylinders necessitated a 25% increase in the factory's capacity to qualify for benefits under Notification No. 50/2003-CE. The Tribunal found that the factory was located in the Selakui Industrial Region, which was eligible for exemption. The Tribunal held that the factory's location in the specified industrial area made it eligible for exemption even before the amendment dated 19.05.2005. The Tribunal also concluded that the capacity expansion did not need to be achieved in each section of the factory but could be considered for the entire factory.

2. Commencement of Commercial Production Before 07.01.2003:
The court evaluated whether the Conductor Division's commercial production commencement before 07.01.2003 disqualified the respondent from availing the benefits of Notification No. 50/2003-CE. The Tribunal found that the production before April 2003 was only trial production and that commercial production started in April 2003. Therefore, it concluded that the respondent was eligible for exemption from July 2003, when the necessary declaration was filed. The Tribunal interpreted "new industrial unit" to include units set up before 07.01.2003 but commenced commercial production on or after 07.01.2003.

3. Jurisdiction of Appeals under Section 35G:
The court considered whether the appeals should be heard under Section 35G of the Central Excise Act, 1944, or directed to the Supreme Court under Section 35L. The court noted that Section 35G excludes appeals involving questions related to the rate of duty or the value of goods for assessment. The court referred to the Supreme Court's decision in Navin Chemicals Mfg. & Trading Co. Ltd. and other High Court judgments, which held that questions related to exemption notifications affect the rate of duty and should be directed to the Supreme Court. The court also noted the amendment in Section 35L, which includes the determination of taxability or excisability of goods for assessment purposes. The court concluded that the appeals were not maintainable under Section 35G and should be pursued before the Supreme Court under Section 35L.

Conclusion:
The court dismissed the appeals as not maintainable under Section 35G, directing the appellants to pursue the matter before the Supreme Court if advised. The court emphasized that questions related to the availability of exemption notifications and the commencement of commercial production are directly related to the rate of duty and should be addressed by the Supreme Court.